\ - ■c lli ^'1. ^'"^r -.■v.. ■ X^^ ;n-T^O, L^'' Lv3c yj* i«^k*:-^- i^i fyxmll A.y/.,7..^.. Uttfemitg 1 ^ ji - - c'^ -^ --. — --■ " - Cornell University Library JX 2565.C7 1861 V.2 Commentaries upon International law. 3 1924 007 476 199 The original of tliis book is in tlie Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924007476199 INTEMATIONAL LAW. VOL. II. lOimOIf. HIIHTED BT 8POTTISWOOBB AND CO., NEW-STEr.SI SQDAnH AHD PAELIAMENT STREET COMMENTARIES UPON INTERNATIONAL LAW. SIE EOBEET PHILLIMOEE, D.C.L. MEMBER OF HER MAJESTY's MOST HONOTJEABLB PRIVY COUNCIL, AND JUDGE OF THE HIGH COURT OF ADMIEA1,TY. * Legum denique idcirco omnes servi sumus, ut liberi esse possumus.'— Cicero pro A. Clumt. § 53. • * H y a dans la saintet6 du droit m6connu une force immortelle qui appuie myst^rieusement et invinciblement ^ la longue les revendicationB paciflques et les protestations solennelles de la conscience humaine. Et, gr^ce en soit rendue au Dieu qui nous a faits I c'est I'honneur de riiumanit6 que la force brutale ne decide pas toujoura tout ici-bas.' — Mgr. Dupaklotjp dans I'Assembl^e Natiouale, 22 JuiUet 1871. * Hie various Transactions and Concordats between Sovereigns and the See of Rome; — a succinct and impartial history of them is wanting: the papal arrange- ments with Bonaparte would not be tbe least curious part of such a work.' — Bora Juridicos Subsecivw, by Charles Butler (1804), p. 118. VOL. II. J>econb €l)ition. LONDON : BUTTEEWOETHS, 7 FLEET STEEET, f afa fnbltsljcrs lo % Qaetn'e ilost gmlltnt Pajtsi^. HODGES, FOSTBB, & CO., GKAPTON STEEET, DUBLIN. 1871. A ^^7^ CORN ELI s\ PEEFACE. Since the publication, last yeaf, of the Second Edition of the First Volume of these Commentaries two new Treaties have become part of positive Inter- national Law. To both of them England has been a contracting party; and both are of grave importance to the commonwealth of States, as to their immediate consequences and as to the principles which they contain. The consideration of them belongs more properly to the former volume ; but in the circum- stances it appears to me expedient to draw attention to the general character of them here, and to 'place the Treaties themselves at length in the Appendix to this volume. II. The first Treaty relates to the navigation of the Black Sea, altering with respect to this subject the conditions of the Treaty of 1856. The alteration itself is important ; but still more important was the VI PREFACE, adoption by the Conference, which met to consider the question, of the resolution, proposed by Lord Granville, namely, " That the Powers recognise that it " is an essential principle of the Law of Nations that " none of them can liberate itself from the engage- " ments of a Treaty, nor modify the stipulations " thereof, unless with the consent of the contracting " parties by means of an amicable understanding." The circumstances which rendered the assertion of this cardinal principle necessary wUl be found at pp. 72-74 of this volume (a). III. The recent Treaty of Washington had for its object to settle more esjDecially the claims preferred by the United States against England on account of the captures made by the " Alabama." In the Preface to the last edition of the first volume of these Commen- taries, I observed: " The dispute which unhappily arose between " England and the United States, in consequence of " the escape of the ship ' Alabama ' from British " territory and her subsequent employment as a ship " of war by the Southern Confederates is, I deeply " regret to say, still open. I wiU only say in this " place, that no English jurist could object to have " that dispute decided upon the principles of law (a) See also Debates in the House of Lords, in March 1871. PEEFACE. VU " laid down, harmoniously, I think, on the whole, " by the tribunals of the United States and England, " and by reference to the public Acts and documents " of both countries " (b). The English Government sent a Commission com- posed of distinguished and learned persons to Wash- ington for the pui'pose of adjusting these claims, the result of which has been the Treaty above mentioned. By it certain Arbitrators are appointed, and the rules of International Law by which they are to be guided are thus stated in the Treaty : " A neutral government is bound, First, To use " due diligence to prevent the fitting out, arming, or *' equipping, ■within its jurisdiction, of any vessel " which it has reasonable ground to believe is intended " to craise or carry on war against a Power with " which it is at peace ; and also to use like diligence " to prevent the departure from its jurisdiction of " any vessel intended to cruise or carry on war as " above, such vessel having been specially adapted, in " whole or in part, within such jurisdiction, to warlike " use. " Secondly. Not to permit or suffer either bellige- " rent to make use of its ports or waters as the base of " naval operations against the other, or for the purpose " of the renewal or augmentation of military supplies " or arms, or the recruitment of men. " Thirdly. To exercise due diligence in its own (6) Preface to vol. i. p. xxix. Vm PEEFACJi. " waters, and as to all persons within its jarisdiction, " to prevent any violation of the foregoing obliga- " tions and duties." Nevertheless, the British plenipotentiaries are ordered " to declare that Her Majesty's Government " cannot assent to the foregoing rules as a statement " of principles of International Law which were in " force at the time when the claims mentioned in " Article I. arose, but that Her Majesty's Govern- " ment, in order to evince its desire of strengthening " the friendly relations between the two countries " and of making satisfactory provision for the future, " agrees that, in deciding the questions between the " two countries arising out of those claims, the " Arbitrators should assume that Her Majesty's " Government had undertaken to act upon the prin- " ciples set forth in these rules." Then follows this important stipulation : " And the High Contracting Parties agree to " observe these rules as between themselves in future, " and to bring them to the knowledge of other " maritime Powers, and to invite them to accede to " them." But this last stipulation does not yet form part of the Municipal Law of the United States, whereas it does form pai't of English Municipal Law, being contained in the " Foreign Enlistment Act " of last year (c). (c) 33 & 34 Vict. c. 90. See Appendix to vol. i. and Preface, pp. xxii-xxix. PREFACE, IX This observation loses none of its force when the fact is recollected, that this remarkable change in our law was one which the English Government was willing to make during. the civH war in America, if the United States would then have consented to proceed pari passu ; but at that time they declined to make, nor have they as yet made, any similar change in their Municipal Law. It is, of course, to be presumed that they will now do so. But, upon the whole, the Treaty must be considered as containing a remarkable concession by England to America. Never before, in a dispute between States submitted to arbitration, did one State admit rules of Inter- national Law, which were not recognised by the party complaining or complained of at the time when the subject of complaint arose, to govern the decision as to the justice of that complaint. Such an admis- sion could not have been demanded by any maxim derived from general jurisprudence or International precedent. It must be considered by the Inter- national jurist as an act of pure diplomacy carrying into effect a measure of State policy — that measure being founded upon the opinion that a durable peace would be secured between England and America by the sacrifice of her right which the former State embodied in this Treaty, and that this result was worth the sacrifice (c?). {d) See DelDatea in the Houses, of Lords (June 12), of Commons (August 8), TKEFACE. IV. Two cases have been decided by the High Court of Admiralty (e) upon the construction of the Foreign Enlistment Act of 1870. In the case of the "International" the facts were these : During the war between France and Germany an English Company contracted with the French Go- vernment to lay down in the sea a series of telegraph cables between certain places on the French coast. The places on the coast between which the cables were to be laid were so situate that, by means of short telegraphic lines carried over land, the series of cables could be united in one hne, and be made to afford complete telegraphic communication between Dun- kerque and Bordeaux, in such a manner that the line might be partially used for effecting communica- tion between the different French armies, if it were completed in time. The Company, having shipped the telegraph cables on board a steam-ship belonging to them, specially fitted for the purpose of laying submarine cables, were, during the war, about to dispatch the steam-ship from London to lay down the cables according to the contract ; when the steam- (e) The American jurist Mr. W. B. Lawi-ence, among other observa- tions on this Act, remarks : ' Jurisdiction in cases under the Act is given to the Court of Admiralty, which is not the least important amendment of the law.' (The Treaty of Washington : Letters from Hon. ^\. B, Lawrence, LL.D, Providence : Hammond & Co. 1871, p. 19. PREFACE. XI ship was, by order of the Secretary of State for Foreign AflPairs, detained, upon the ground that it was about to be dispatched contrary to the Foreign Enlistment Act, 1870. On motion for the release of •the ship, it was proved, to the satisfaction of the Court, that the undertaking in which the ship was about to be engaged was primarily of a commercial character ; that the object of the contract was to furnish ordinary postal telegraphy, and that the Company were not parties to any project for adapting the line of cables to military purposes : thereupon it was holden that the Company were entitled to have the ship released. In the case of the " Gauntlet," a French man-of- war had, during the war, put into the Downs, with a prize, through stress of weather. The man-of-war soon after sailed, leaving the prize with a prize-crew on board. The French Consul at Dover, being informed by the Collector of Customs, on behalf of the British Government, that the prize must not remain in English waters, procured an English steam- tug, which towed the prize to Dunkerque. The service appeared to have been treated by all parties as an ordinary towage, and only the ordinary price for towage was paid to the steam-tug. The Crown proceeded against the steam-tug for having been employed in the military or naval service of France. It was holden however that, in the circumstances, she had not been so employed within the meaning of the Act, and the suit was dismissed. PREFACE. V. The decision on the law of Piracy given by the Judicial Committee of the Privy CouncU in the case of the " Telegrafo " or " Kestauracion " should also be noticed here. It was holden in this case that there was no authority for the position that a piratical ship, sold before any proceedings for piracy had been taken on the part of the Crown against her, by public auction, to a bond fide and innocent purchaser, can be after- wards arrested and condemned, on account of former piratical acts, to the Crown ; and that the taint of piracy does not, in the absence of conviction or condemnation, continue, like a maritime lien, to travel with the ship through her transfers to various owners. VL The Part of this volume devoted to the Inter- national status and relations of Foreign Spiritual Powers, and especially of the Pope, has undergone considerable revision and addition, both in the Text and in the Appendix. VII. Since the Chapter and the notice in the Appendix on this subject were printed, the Bavarian Minister PKEFACE. XIU of Public Worship has issued an important State Paper on the alteration in the relations of the Papacy and the Bavarian Government, consequent on the Yatican Decree of the 18th of July 1870 (/). (/) See Erlass des Bayerischen Cultusministeriums an den Erzbiechof von Munclien. — Munchen, den 27 August 1871. Allgemdne Zeitung, 30 August 1871. CONTENTS. CHAPTER I. RlOHIS nSrCIBENT TO THE EQUALITY OP STATES. Pp. 1, 2. CHAPTER II. Right ob protecting Citizens in Foebign Cottnteies. Pp. 3-7. CHAPTER III. Subject continued. Pp. 8-15. Debts of the State. Lord Palmerston's Letter in 1848. Debts guaranteed by Treaty. Depreciation of Money by Debtor State. Property of the Subject liable to the Debts of the State. CHAPTER IV. Recognition. Pp. 16-40. A kind of Moral Intervention. Different kinds of Recognition. Virtual and formal Recognition. Historical Instances : — United Netherlands ; Por- tugal ; Commonwealth of England ; Pretender ; North American United States; Governments in France since 1792. Decisions of Municipal Tribunals. Recognition of Titles of Dignity. CHAPTER V. Right to exieknai Maeks of Honour and Respect. Pp. 41-63. Maritime Honours. Insignia of the State. Precedence at Congresses. Royal Honours. Rank of States. Language of International Communication. ^Vl CONTENTS. CHAPTER VI. Treaties. Pp. 64-79. Their Place in the System of International Law. Different Modes of consi- dering them. Who may contract. Eeciprocal Consent. What may be the Subject of. Modes of confirming. CHAPTER VII. Teeatibs. Pp. 80-88. Guarantees, different kinds of. CHAPTER Vm. Tkeaties. Pp. 89-120. Interpretation of. (a.) Literal Interpretation. (b.) Logical Interpretation. (1.) Uncertainty. (2.) Impropriety of Language. General Rules respecting. Uncertainty of Expression, arising from (1.) Incompleteness. (2.) Ambiguity of Language. (a.) Ambiguity of single Expressions, (b.) Of general Construction. Two general Eules relating to. Impropriety of Expression. Rectified by (1.) Restrictive. (2.) Extensive Interpretation. Case of Kusso-Dutch Loan. Eadem ratio idem jus. Thino-s favourable ■ odious. CHAPTER IX. Collision of Tkeaties. Pp. 121-126. Eviles respecting. Decisions of British and American Courts. CONTENTS. XVll part Wh CHAPTER I. Rights of SovEeeigks. Pp. 127-147. Historical Instances. Decisions of Dutch, French, and English Tribunals. CHAPTER II. Embassy. Pp. 148-167. General Arrangement of the Subject, Who may send Embassy. The Trent. CHAPTER HI. Embassy, Right to eecbive. Pp. 168-177, Eight to refuse. Resident Embassy. CHAPTER IV. Embassy. Pp. 178-185, General Eights of. Injuries to— Feciales. CHAPTER V. Embassy, Roman Law Eespeciing, Pp. 186-191. Inviolability of. Christian Church. Middle Ages, CHAPTER VI. Embassy, Extent of Inviolability. Pp. 192-194. CHAPTER VII. Embassy, Inviolability op. Criminal Law. Pp. 195-211. Whether, and how far. Ambassador amenable to. Cases respecting. VOL. II. a XVm CONTENTS. CHAPTER VIII. Embassy. Exteeeitokialitt. Civii JtmisDicrioN. Pp. 212-238. How far Ambassador amenable to. Cases respecting. His Suite ; Taxes ; Duties; his Hotel; Chapel. CHAPTER IX. Embassy. Different Cxasses of Pttblic Ministees. Pp. 239-247. CHAPTER X. Embassy. Instetjctions of Ambassadors. Credentials. Pp. 248-251. CHAPTER XI. Embassy. Arrival op Ambassador. Pp. 252-257. Audience. Alteration and Close of Mission. iart WM* CHAPTER I. CoNsiTLS. Historical Introduction. Pp. 258-262. CHAPTER H. Consulate in Christian Countries. Pp. 263-278. Consuls-General. Vice-Consuls. Treaties respecting. CHAPTER in. Consuls. Duties and Powers op. Pp. 279-300. United States Consular Regulations. CONTENTS. XIX CPIAPTER IV. Consuls. Decisions of Municipal Tkibunals eespecting. Pp. 301-311. CHAPTER V. Consuls in the Levant— in China. Pp. 312-316. part WMh INTERNATIONAL STATUS OF FOREIGN SPIRITUAL POWERS, ESPECIALLY OF THE POPE. CHAPTER I. Religion and the State. Pp. 317-320. Division of the Subject, and Order of Treatment in the following Chapters. CHAPTER n. General Observations as to the Right of the State to super- intend, -WITHIN its TEEEIIOKIAL LIMITS, ALL RELIGIOUS DOC- TRINES TAUGHT, AND THE TbAGHEES OF THEM. ThE EARLY Connection of the Christian Church with the State. Pp. 321-337. Influence of Religion. Church. Collegium licitum. Church under Constan- tine. Pepin-le-Bref. Identity of Church and Slate, CHAPTER m. The Growth of the Authority and Pretensions of the Pope, Pp. 338-346. Collision between Church and State ufter the time of Charlemagne, Jzira Majestatis circa sacra. Corpus Jtiri.'i Canmiici. ii 2 CONTENTS. CHAPTER IV. The Corpus Jtjeis Canonici, and the Principles coniadted therein, and in subseqitent bltlls, at variance with International Law. Pp. 347-374. VenerabUem. Solitce. M ApostoUcs. Clericis Laicos, Quod Olim. JJnam Sanctam and Meruit. Romani Prindpes. Pastoralis. Si Fratrum. Se Consuetudine. The Bull, In Ccend Domini. CHAPTER V. The International Status op the Papacy between the Period OE THE PrOMOIOAIION OP THE CaNON LAW AND THE CoTTNCIL OP Trent. Pp. 375-388. Height of Papal Power. Pragmatic Sanctions. Concordata. French Chnich. German Concordata. CHAPTER VI. Subject Continued 1563-J870. Pp. 389-400. The Period of the Council of Trent, and its Effect upon International Eelations. Peace of Westphalia. Encyclic ' Quanta Cura,' Syllabus, 1864. Vatican Council. Bule as to Papal Infallibility, 1870. CHAPTER VII. The International Relations of the Papacy with Foreign States in which the Roman Catholic Church is esta- blished DURING THE PERIOD BETWEEN THE REFORMATION AND THE PRESENT TIME. ThE HiSTORY OP CONCORDATA. Pp. 401-449. Eelations of Home with Prance. Monitorio di Parma. Napoleon and Rome. Subsequent relations between Prance and Eome. Papal Eelations with Austria — with Hungary — with Spain — with Portugal — with The Two Sicilies — with Sardinia — with Tuscany — with Bavaria — The Kingdom of Italy. CONTENTS. CHAPTER VIII. The Intbenationai, Eelations of the Papacy with Foebign States m -which a Protestant Chuech is established. BxfLLM ClRCUMSCRlPTIONUM. Pp. 449-469. Papal Eelations -with Prussia — with Hanover — with smaller Grerman Pro- testant States — with Saxony — with Switzerland, CHAPTER IX. The International Relations op the Papacy with States in WHICH A Branch op the Catholic Chuech, jvoy in Com- munication WITH Rome, is established. Pp. 464-483. Papal Eelations with Eussia — with the Ottoman Porte — with England. CHAPTER X. The Electors, Mintsiees, and Coitrts op the Pope considbeed in theie Relations to Foeeign States. Pp. 484^502. CHAPTER XL Inteenational Status op the Patriaechate op Coitstaniinople. Pp. 503-511. The Church in the Kingdom of Greece. Eelations between the Greek and Anglican Churches. Por Contents of Appendix, see Chapter of Contents preceding Appendix. EXPLANATION OE EEPEEENCES TO THE COKPUS JUEIS CIVILIS. Theotjohout this Work the Eoman Law is cited according to what a priori might Beem the natural manner, namely, a reference is made to the Institutes, Digest, the Code, or the Novells, by an abbreviation of the first syllable of each of these members of the Corpus Juris Civilis, then to the number of the book, then to the number of the title, then to the number of the law, and then to the number of the section, ot! paragraph, as Inst. 1. ii. t. i. s. figure 1, meaning booJci. title i., and sec. 1 of the Institutes of Justinian ; Dig. xxyii. 1, 13, 2, meaning Digest, book xxvii. title i. law 13. see. 2.; Cod. iii. 39, 6, meaning The Code, book iii. title 39, law 5, The Novellm, or Novells, are cited according to the number of the Novell, which is subdivided into capita or sections, as Nov. xxi. 2, meaning Novel, xxi. cap. 2. The Corpus Juris Civilis is usually cited by Continental writers as follows : — The Institutes, by the letters Inst., Instit., or /. The number of the paragraph, followed by the rubric or heading of the title, thus — § 3. Inst. De Nuptiis. Sometimes the reference is made by the numbers of the paragraph, book, or title, thus — § 3. Inst. i. 10. The letters ^rme.,^., oi princip., indicate the commencing paragraph of a title, as the numbering commences with the second. The Digest, or Pandects, are usually indicated by the older Continental writers by the letters ff. The letter L. means Law, and the mark § means section of the law. The words after the letters ff. give the rubric or heading of the title or chapter. Thus, for instance, L. 49, § \,ff. De Act Empt., signifies Law 49, parc^. 1, in the Pandects, title De Actione Empti. Sometimes the first words of the law are cited. Sometimes the reference is in this manner, the letters Pand. (used instead of jf.), D., or Dig., all of which signify Justinian's Pandects. XXIV EXPLANATION OF REFEEENCE8. Sometimes the letter or letters indicating the Pandects are placed last, thus — Jj. profeotitia, § si pater D. Dejure Dot. Or, the numbers of the law and paragraph are given, instead of their initial words, thus — L. 6, § 6, De Jure Dotium. The law cited is sometimes indicated by the letters Fr, instead of L. 7%e Code. The Code of Justinian is cited in the same way as the Pandects, and indi- cated by the -letters Cod, or C. ; and some writers use the letters Constit. {Constitutio) instead of L. The Novclls, or later Constitutions in the Corpus Juris, are indicated by the words Nov. or Noml. AN EXPLANATION OF THE EEFEEENCES TO THE BOOKS OF THE CANON LAW. X. i. 9, 6, 4. — That is to Bay, book the first, title the ninth, chapter the sixth, and paragraph the fourth of the Decretals of Pope Gregory the Ninth. The letter X. denoting the Decretals of that Pope. VI. 3, 4, 23. — Book the third, title the fourth, and chapter the twenty-third, of the sixth book of the Decretals by Pope Boniface the Eighth. Clement.ijtfl, — Book the second, title the fifth, and chapter the second of the Clementines. Extra. 14, 3. — That is to say, title the fourteenth, and chapter the third, of the Extravagants of Pope Joan the Twenty-second. Comm. 3, 4. — That is to say, book the third and chapter the fourth of the Communes. Dist. 76, c. 2. — Distinction the seventy-sixth and chapter the second of the first part of the Decrees. And if a V. consonant, or this note be added, viz. §, it denotes the verse or paragraph of that chapter, as Dist. 16, u. 2, v. 3, or § 3. 16. Q. 7, 3. — '■ That is to say, cause the sixteenth, question the seventh, and chapter the third, of the second part of the Decrees. Con, 1 , 2. — Distinction the first and chapter the second of the third part of the Decrees. All these books of the Canon Law are likewise sometimes quoted by the initial words of the law or chapter itself, and by the words of the title ; as thus. Ex specialts, extra de Judais, that is to say, cap. 17. tit. 6. of the fifth book of Gregory's Decretals ; for the word Extra imports these Decretals, as well as the Extravagants. LIST OF CASES CITED IN THIS VOLUME. Albrecht v. Sussman, 811 Attorney-General, The, v. Kent and others, 233 B Baibuit's Case in Chancery, 304 Bass (M. de), French Minister, Case of, 202 Caroline, The, 165 Chailotte, The, 125 Christiansberg, The, 110 City of Berne in Switzerland, The, V. The Banli of England, 34 Clarke v. Cretico, 308 Colebrook v. Jones, 310 Columbian Government v. Roth- schild, 143 Cross V. Talbot, 222 D Dalrymple v. Dalrymple, 389 Darling v. Atkins, 222 De Haber v. Queen of I'ortugal, 136 Diana, The, 126 Dolderu. The Bank of England, 34 Duke of Brunswick v. King of Hanover, 136 Duke de Montellano v, Christin, 145 E Eliza Ann, The, 125 Elphinstone v. Bedreechund, 125 Emperor of Austria v. Day and Kossuth, 145 Emperor of Brazil v, Robinson and others, 145 England (Ambassador of, at Constantinople), Case of, 202 Evans v, Higgs, 221 F Falcon, The, 311 Faraa, The, 125 Franz et Elise, The, 269 G Gauntlet, The. See Preface Gladstone v. Musurus Bey, 216 Gratitudine, The, 110 Gyllenburg (Swedish Ambassa- dor), Case of, 202 XXVlll CASES CITED. H Heathfleld v. Chilton, 221, 807 Hoey (M. Van), Case of, 204 Holdernesse (Bngliah Ambassador at Venice), Case of, 203 Hope and others. The, 311 Hopkins v. De Roheek, 223 Hotham v. East India Company, 125 HuUett and Widder v. King of Spain, 143 N Native, The, 53 Nina, The, 269 Novello V. Toogood, 221 O Oldknow V. Wainwright, 348 Indian Chief, The, 311 Inoyosa and Colonna (Spanish Ambassadors), Case of, 201 International, The. See Preface Josephine, The, 311 K King, The, in his Office of Admi- ralty, V. Miller, 51 King, The, v. Benson, 52 King of Spain v. Hullett and Widder, 143 Pilkington v. Commissioners, &c., 14 V. Stanhope, 224 President, The, 311 Prioleau, v. United States, 144 Q Queen, The, in her Office of Ad- miralty, V. James N. Forbes, 52 Queen, The, v. Ewen, 62 B Richardson ■». Anderson, 124,' 125 Ringende Jacob, The, 122, 125 Rothschild v. Queen of Portugal, 144 Le Louis, The, 70 Lindo V. Rodney, 125 Lockwood V, Ooysgarne, 222 M Magdalena Steam Navigation v, Martin, 216 Maltass v. Maltass, 89 125 Manilla, The, 26 Marryat v. Wilson, 135 Masters v. Manby, 222 Minerva, The, 51 Molly, The, 125 Sa (Don Pantaleon), Case of, 204 Secretary of State for India v. Kamachee Boye Sahaba, 2 j Stewart, Dr., Case of, 172 Swift V. Kelly, 389 Taylor v. Barclay, 34 -v. Best and others, 223, 224 Telegrafo, The. See Preface Teutonia, The, 110 Thompson v. Powles, 34 215. CASES CITED. XXIX Trent, The, Case of, 21, 160, 162 Triquet and others v, Bath, 222, 307 U United States v. McKae, 146 V. Wagner, 35, 144 W Wadsworth v. Queen of Spain, 136 Widinore v. Alvarez, 221 Worth, Mr., Case of, 5 Yrisarri v, Clement, 3{ Viveash v. Becker, 222, 301, 309 Zaoheman, The, 125 AMEEICAN. G Amiable Isabella, The, 126 Garcia v. Lee, 126 Anderson v. Lewis, 126 Gelston v. Hoyt, 27 Anne, The, 270 Gemon v. Cochrane, 270 Antelope, The, 270 Gordon v. Kerr, 125 Arnold v. United Insurance Graham v. Pennsylvania Insurance Company, 311 B Company, 126 Griswold v. Washington, 311 H : Bella Coerunes, The, 270 Blight V. Rochester, 125 Bolchos V. The Three Negro Slaves, 126 „ British Consul v. Ship Mermaid, Hylton v. Brown, 126 .126 Hamiltons v. Eaton, 126 Henderson v. Poindexter, 126 Hutchinson v. Brock, 125 Cabrera, Ex parte, 208, 220 Inglis V. Trustees of the Sailors' Snug Harbour, 219 D Dupont V. Pichon, 229 Jackson v. Porter, 126 Foster v. Neilson, 126 M Miller v. Gordon, 126 XXX CASES CITED. Miller v. The Resolution, 126 M'Nair v. Ragland, 126 O Orser v. Hoag, 126 Pizarro, The, 126 R Respuhlica v. De Longchamps, 208, 220 Robson V. The Huntress, 270 Rose V. Himeley, 27 Torlade v. Barazzo, 207 U United States, The, v. Palmer, 35 V. Percheman, 125 V. Benner, 180, 207 V. Little, 207 V. Ortega, 207 V. Hand, 229 Valarino v. Thompson, 270 Santissima Trinidad, The, 126 Society v. New Haven, 125 Society (the) for the Propagation of the Gospel, &c. v. "Wheeler, 329 St. I. Indiano, The, 125 Stockton V. Williams, 126 W Ware v. Hylton, 119 V. Highton, 126 Whitalfer v. English, 125 Wilson V. Smith, 126 FEENCH. Affaire de la Maison Balguerie, de Bordeaux, contre le Gouverne- ment Espagnol, 137 AiFaire de MM. Temaux, Gan- dolphe, et Compagnie, contre la R^puhlique d'Haiti, 137 C Cellamare, Case of, 206 H Hermann, Delong, Case of, 303 S SoUer, M., Case of, 303 Solon, M., against Mehemet AH, 138 Sully (Due de). Case of one of the Retinue of, 200j LIST OP AUTHOEITIES REFBEEED TO IN THI3 VOLUME, SEIKO ABDMIONAL TO THOSE EEFEEEED TO IN THE FOBMKH VOLTJME. Abtott on Merchant Ships and Seamen. (Eleventh edition.) Adolphus, History of England. Allgemeines Landreeht fur die PreusBisehen Staaten. Aitand, Histoire de Pie VII. B Bacon (Lord), Maxims of the Law, Eegula iii. Bacon's (Matthew) Abridgment. Baldwin's (American) Eeports. Barbosa, De Officio et Potestate Episcopi. „ De Jure Eeclesiastico. Baronius (Card.), Annales Ecclesiastici, cum Pagi Critica, necnon Eaynaldi Continuatio, Tornielli Annales Sacri, Apparatus et Index. Luccse : 1738-56. Bay's (American) Eeports. Bee's (American) Eeports. Bernard (M.) Notes, on some Questions suggested by the Case of the Trent. Bingham's Antiquities of the Christian Church. BluntschU, Le Droit international codifi^. Bosanquet and Puller's Eeports. Bossuet, Declaratio Cleri Gallioani. „ Sur rUniti de I'EgUse. Bougeant (P4re), L'Histoire du Traits de Westphalie. Bramhall (Archbishop), A Just Vindication of the Church of England. Broom's Legal Maxims. Bullarii Eomani Continuatio, S. Pontificum Clementis XIII., dementis XIV. Pii VI., &c., coUegit And. Adv. Barberi,' tom. 1-10, in 7 vols, folio. Eom. 1835-45. Tom. 1, 2, 3. Clemens XIII.; tom. i. Clemens XIV. ; tom. 5-10 Pius VI. XXXU LIST OF AUTHORITIES. BuUarium Magnum Romanum, a B. Leone Magni, usque ad S. D. N. Bene- dietum Xin., cura et studio L. et A. M. Cherubini, editw nomsima, juxta exemplar Eomcs, 19 torn, in 16., folio. Luxemb.: 1727-68. Burleigh's (Lord) State Papers, by Murden. Butler's Historical Memoirs of the Eoman Catholics. Bynkershoeck, Opusculum De Cultu Eeligionis Peregrinae apud veteres Eomanos. Csesar, De Bello Civili. Campbell's Reports. Cases in Equity under Lord Talbot. Chalmers's Collection of Opinions. Cicero, De Inventione Rhetoric^. „ De Divinatione. „ Epistolae ad FamUiares. „ Orationes Philippicse. Clark and FinneU/s Reports. Clerg6 (M. du). CoUetta, Storia del Eeame di Napoli. Collier's Ecclesiastical History of Great Britain. Colonial Church Chronicle for February, March, April, 1871. Coppi, Annali d' Italia. Cotton's (Sir R.) Remains. Oujacius, Jacobus. C2iraky, Conspectus Juris Publiei Regni Hungariae. D De Pradt, Quatre Concordats. „ Suite des Quatre Concordats. „ Concordat de I'Am&ique avec Rome. De Torcy, Mimoires. Deutsch oder Russisch. (Pamphlet.) Devereus's (American) Equity Reports. Devoti, Institutionum Canoniearum Libri. Dictionnaire de I'Acad^mie Fran5aise. Dirksen, Manuale Lat. Fontium Jur. Civ. Romanornm. Document! Diplomatici relativi alia Questione Romans : commnnieati dal Ministro degli Affari Esteri. 1870. Dodd's Roman Catholic History. Donnellus, De Jure Civili. Douglas' Reports. Dow and Clark's Reports. Bowling's Reports. Ducange, Gloss. LIST OF AUTHORITIES. XXXlll Duck, De Usu et Aiictoritate Juris Civilis. Dupin, De Ant. Eccles. Discipline Diss. Historiae. Dupuis (Jacques), Commentaries on Pitliou. Durnford and East's Reports, E Ebenders, Was ist ein Bischof ? Evans's Translation of Pothier on Obligations. Eybel, Was ist der Papst ? Farini, Lo Stato Romano, Febronius (Justinus), De Statu Ecclesise et legitimll Potestate Roman4. Fleury, Hist, eccl^siastique. Freeman's Chancery (American) Reports. Friedrieh (Dr. J.), Documenta ad illustrandum Concilium Vaticanum anni 1870. Fynn's British Consul Abroad. G Craius, Institutiones. Gallison's (American) Reports. Giannone, Istoria del Regno di Napoli. Gibbon, Decline and Fall of the Roman Empire. Gioberti, Delia Riforma Cattoliea. Frammenti. Giesler, Lehrbuch der Kirchengeschichte. Gregorii Magni Opera. Grotius, De Imperio summarum Pot«statum circa sacra. H Hegel, Naturreeht und Staatswissenschaft. Hilliger ad Donellum. Hill's (American) Reports. Hoffman, Lexicon Universale. Hue, Voyage dans le Thibet. Junius, Letters of. K Koch, Sanctio Pragmatica Germanorum lUustrata. VOL. II. b XXxiv LIST OF AUTHORITIES, L La Fuente, Historia General de EspaSa. Lamberty, Mimoires. Laadon's Manual of Councils. Laurent, Hist, du Droit des Gens. Law Journal Reports. Law Reports. Leber, Pieces relatives a I'Histoiro de France. Lequeux, Manuale Compendium Jiiris Canonici. Livius. LorieiLx, Traits de la Prerogative royale. M Maillane (Durand de), Dictionnaire de Droit canonique. Maistre (Comte Joseph de), Du Pape. Marca (Petrus de), De Concordauti4 Sacerdotii et Imperii de Libertatibus Ecclesise Gallicanae. Marquardsen (Dr.), Der Trent Fall. Martin's (American) Reports. Martin (H.), Histoire de France. Mason, Vindiciae Ecclesiae Anglicanae, Massachusetts (American) Reports. Maule and Selwyn's Reports. Miles' (American) Reports. Milmau, History of Latin Christianity. Modern Reports. Moser, De Pactis et Privilegiis circa Religionem. Miiller's Fiirstenbund. ,, Reichstagstheatrum unter Friedrich III. Muratori, Annali. N Noodt (Ger), Dissertatio de Relig. ab Imperio, Jure Gentium libera. Offizielle Aktenstiicke zu dem von Seiner Heiligkeit dem Papste Pius IX, nach Rom berufenen Oekumenischen Concil. Berlin, 1869. P Pacca (Cardinale), Meraorie del. Packman, Lehrbueh des Kirchenrechts. LIST OF AUTHORITIES. XXXV Paine's (American) Eeports. Pamiers (De), TraitA de la E^gale. Pando, Elementos del Derecho Internacional. Peray (M. Michel de), Observations eur le Concordat fait entre L^on X et Francois Premier. Peters' (American) Eeports. Phillimore's Case of the Seizure of the Southern Envoys. „ (Burn's) Ecclesiastical Law. Phillips, Kirchenrecht. Pichler (Dr. A.), Geschiehte der kirchlichen Trennung zwischen dem Orient und Occident. Planck, Geschiehte der Christlich-kirchlichen Gesellschaftsverfassung. Popoff, Hist, of Council of Florence, translated by Neale. Portalis (J. E.), Discours, Eapports, et Travaux inedits sur le Concordat de 1801, les Articles organiques, &c. Prendergast, The Law relating to Officers of the Navy. Piitter, Beitrage zur Volkerrechts-G-eschichte. a Quintilianus, De Institutioue Oratorio. E Eanfe, Die Eomischen Papste. Eeal (De), Science du Grouvernement. Eechberger, Enchiridion Juris Ecclesiastici Austriaci, Eiegger (Pauli Jos. de), Institutiones Jurisprudentise Ecclesiastiese. Eobertson's Ecclesiastical Eeports. Eousset, Supplement. See Dumont, in Vol. I. Eaynaldus. See Baronius. S Samwer (Continuation of Martens). Sauter, Eundam. Jur. Eccl. Catholicse. Savigny, Obligationenrecht. SchoeU, Archives historiques et politiques. Schram, Institutiones Juris Eeclesiastici Publici et Prirati. Schrockh, Christliche Kirchengeschichte. Scottish Ecclesiastical Journal, April 1851. Simons's Eeports. Spittler, Geschiehte dee Papstthums. Strype's Annals of the Church. St.-Simon, Memoires de. Syra and Tenos, Archbishop of, Eeport of his Jom-ney to England, in Greek and English. XXXvi LIST or AUTHORITIES. Taparelli, Saggio Teoretico di Dritto Naturale, &o. Taunton's Keports. Taylor's (American) Reports. Taylor's Law of Evidence. T^tot, EApertoiie des Traitis de Pais de 1492-1866 : 1. Partie alphab^tique. 2. Partie chronologiqne. References to the different collection of Treaties, Titles and Dates of which are given. Theodosius, Codex. Thomassinus, Vetus et Nova Ecclesiae Disciplina. Thuamis, Historia Bui Temporis. Thurloe's State Papers. Tindal (Continuation of Eapin). Twiss, Letters Apostolic. Van Espen, Tractatus de Promulgatione Legum Ecclesiasticorum ac speciatim Bullarum et Eescriptorum Curiae Eomanse. ,, Jus Ecclesiasticum universum hodiernse disciplinae. Vernon's Cases. Vese^s Reports. Virgilius. Voltaire, Essai sur les Moeurs et I'Esprit des Nations. W Walker's (American) Chancery Reports. Walters's Kirchenrecht. ■Washington's C. C. (American) Reports. Wildman's International Law. Willson's Reports. Yerger's (American) Reports. Zouch, Solutio Quaestionis Veteris et Novae, sive de Legati Delinquentis Judice Competente Dissertatio. LIST OP EEPOKTS. ENGLISH. Bamewall and Cresswell's. Law Journal. Bingham's. Bosanquet and Puller's. Burrow's. C Campbell's. Clark and Finnelly's. Consistory (Haggard's). Law Reports (Weekly Notes). M Maule and Selwyn's. Modem. Moore's Privy Council. B Robinson's (Cfiristopher) Admi- ralty. D Robertson's Ecclesiastical, Dodson's (Admiralty). Douglas'. Dow and Clark's. Dowling's. Durnford and East's. S Simons'. Strange's. T E Taunton's Reports. Edwards' (Admiralty). V Vernon's Cases. H Haggard's (Admiralty). „ (Consistory). Vesey's, Vesey and Beames* (Chancery). W Willson's, K Knapp's Privy Council. Young ".nd Collier's, XXXVUl LIST OP EEPOKTS. AMEEICAN, Baldwin's. Bay's. Cranch's. Johnson's. Martin's. Massachusetts. Miles'. M Dallas'. Devereux's Equity. Peters'. Paine's. Freeman's Chancery, Gallison's, Taylor's. W Walker's Chancery. Washington's C. C. Wheaton's. H Hill's Yerger'a. FRENCH. Gazette des Tribunaux. OOMMENTAEIES i:p^teri^atiofal law. COMMENTARIES WON mXERNATIONAL LAW. PAET THE FIFTH. CHAPTER I. EIGHTS INCIDENT TO THE EQUALITY OF STATES. I. It has been said (a) that the Eights incident to Equality seem to flow, more especially, from the second of the two propositions upon which the science of International Law is maialy built; namely, the proposition that each State is a member of an Universal Community ; and that the principal Kights incident to this doctrine of the Equality of States, are the following : — I. The Right of a State to afford protection to her subjects wheresoever commorant (5) : and under this category must be considered the important question of Debts due by the Government of one State to the Subjects of another. (a) Vide ante, vol, i. part i. c. 2. p. 9 ; part iii. c. 2. p. 184. (5) Orotius, 1. iii. c. ii. Quomodo jure gentium bona subditorum pro debito imperantium obligentur : ubi de repressaliia. Vattd, 1. ii. c. xiv. aec. 216. Heffters, 134. Martens, 1. iii. c. 3. sec. 110. VOL. II. B 2 INTERNATIONAL LAW. II. The Eight of a State to the Recognition of her Government by the Government of other States. III. The Right of each State to external Marks of Honour and Respect from other States. IV. The Right of each State to enter into International Covenants and Treaties with other States. It is proposed to consider these subjects in the following Chapters. But with regard to all of them it should be borne in mind that — to use well-considered judicial language — the Transactions of Independent Sovereign States between each other are governed by other laws than those which Municipal Courts administer. Such Courts have neither the means of decreeing what is rights nor the power of enforcing any decision which they may make (c). (e) Secretary of State for India v. Kamachee Boye Sahaba. 13 Moore, Privy Council Jtep., pp. 75, 84-86. PROTECTING CITIZENS IN FOEEIGN COUNTRIES. CHAPTER II. RIGHT OF PROTECTING CITIZENS IN FOREIGN COUNTRIES. II. The limitation which this Right of Protection pre- scribes to the foregoing Right of Jurisdiction, may be in a great measure inferred from what has been stated with respect to the extent of the latter Right. " Prima autem maximeque necessaria cura pro subditis, " sive qui familiari, sive qui civili subsunt imperio ; sunt enim " quasi pars rectoris ; " is the language of Grotius (a) ; and Vattel (6), following in the same track, observes; — " Quiconque maltraite un citoyen, offense indirectement (r) " I'Etat qui doit proteger ce citoyen " {d). It has been said that every individual who enters a foreign territory, binds himself, by a tacit contract, to obey the laws enacted in it for the maintenance of the good order and tranquillity of the realm. The converse of the proposition is equally true. Foreigners, whom a State has once admitted uncondition- ally into its territories, are entitled not only to freedom from injury (e), but to the execution of justice (/) in respect (fi) Orotivs, 1. ii. c. xxv. De camis belli pro aliis susdpiendi. (6) Heffters, ss. 6, 59, 60. Vattel, 1. ii. vi. De la part que la nation peid avoir aux actions de ses dtoyens. (c) Vide ante, vol. i. p. 355. {d) Grotius, ubi supra. Vattel, ubi supra. (e) Correspondence respecting the Arrest of Mr. Harwood {the Vienna Correspondent of " The Morning Chronicle ") by the Austrian Authorities at Vienna, 1852-3. Laid before Parliament, 1853. (/) Debates in both Houses of Paiiiament on the Affairs of Greece and the claims of Don Pa eif.co.— Hansard's Pari Deb. June, 1850. B 2 4 INTERNATIONAL LA^n'. to their transactions with the subjects of that State. No country has a right to set, as it were, a snare for foreigners ; therefore conditions hostile to their interests, or different from general usage, must be specified beforehand {g). Foreigners are not, as will be seen hereafter, strictly speaking, entitled to demand as a right the execution of justice in civil matters relating to affairs either between themselves, or between themselves and the citizens of a third State. How far the Cojiitt of nations extends to these last two cases will be considered hereafter (/i). It is only necessary to remark here, that the refusal on the part of a State to do justice between commorant foreigners, with respect to disputes which have arisen from transactions in that State, is, to say the least of it, a very gross violation of that Comity (J). III. The State, to which the foreigner belongs, may inter- fere for his protection when he has received positive maltreat- ment, or when he has been denied ordinary justice in the foreign country. The State of the foreigner may insist upon reparation immediately in the former case. In the latter the interference is of a more delicate character. The State must be satisfied that its citizen has exhausted the means of legal redress afforded by the tribunals of the country in which he has been injured. If those tribunals are unable or unwilling to entertain and adjudicate upon his grievance, the ground for interference is fairly laid. But it behoves the interfering State to take the utmost care, first, that the commission of the wrong be clearly established ; secondly, that the denial of the local tribunals to decide the question at issue be no less clearly established. It is only after these propositions have been irrefragably (g) " Des qn'il les rejoit, il s'engage a les protgg-^r comme ses propres sujets, a les faire jouir, autant qu'il depend de lui, d'une entiere sm-et^." — Vaftel, 1. ii. c. viii. s. 104. (h) Vattel, 1. ii. c. viii. Regies d Vigard des Grangers. (i) Vnttel, 1. ii. c. viii. sec. 103. " Les diflKrends qiii peuvent s'^lever entre les strangers, ou entre un stranger et un citoven, doivent etre temiings par le jiige du lieu, et suivant les lois du lieu." PROTECTING CITIZENS IN FOREIGN COUNTRIES. 5 proved, that the State of a foreigner can demand reparation at the hands of the Government of his country ; and it is not till after the Executive as well as the Judicial Authori- ties have refused redress, that recourse can be had to Reprisals (Jt), much less to War. As a general rule, no objection to the forms of procedurcj or the mode of administering justice in the Courts of the country, can found any such demand ; the foreigner should have considered these things before he entered into trans- actions in the country (?). Nevertheless, a plain violation of the substance of natural justice, e.g. refusing to hear the party or to allow him to call witnesses, would amount to the same thing as an absolute denial of justice. " Jus repressalium (says Grotius) fieri intelligitur non " tantum si in sontem aut debitorem judicium intra tempus " idoneum obtineri nequeat, verum etiam si in re minime dubia " (nam in dubia re prsesumptio est pro his qui ad judicia " publice electi sunt) plan^ contra jus judicatum sit ; nam " auctoritas judicantis non idem in exteiros quod in subditos "valet. . . exteri autemjus habentcogendi, sedquo utinon " liceat quamdiu per judicium suum possint obtinere " (m). It is impossible to state the law more ably or more clearly than in the reply of Great Britain, in 1753, to the King of Prussia (w). According to that statement, " The law of " nations, founded upon justice, equity, convenience, 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 justice absolutely " denied in re minime dubia by all the tribunals, and after- " wards by the Prince " (o). {K) Vide post. (I) See the case of 3fr. Worth — Papers laid before Parliament 1871. (m) Orotius, 1. iii. c. ii. s. 5. {n) 2 Marte^is Causes celebres, part i. P. 57 oi Mmnorial. — Cahinet Library of Scarce and Celebrated Tracts, vol. i. (o) Treaty between England and Holland, July 31, 1667. Reprisals not 6 INTERNATIONAL LAW. IV. The distinction between domiciled persons and visitors in or passengers through a foreign country is never to be lost sight of; because it must affect the application of the rule of law which empowers a nation to enforce the claims of its subjects in a foreign State. The foreign domicil does not indeed necessarily take away this rule of law, but it renders the invocation of it less reasonable, and the execution of it more difficult. A subject, who has deliberately domiciled himself in another State, can have no ground of complaint, if he be subjected to many taxes and impositions from which the simple stranger would, by the usage of nations, be exempt. Moreover he must be taken to have considered the habits of the people, the laws of the country, and their mode of ad- ministration, before he established therein his household gods, and made it the principal seat of his fortunes. He cannot therefore expect, that every complaint which, with respect to these matters, he may be disposed to urge upon his native Government, -will of necessity be entertained by it. More especially, if, being permitted by the law of his domicil, he have purchased land, and thus incorporated himself, as it were, into the territory of a foreign country, he cannot require his native Government to interfere on the subject of the operation of municipal laws, or the judg- ment of municipal tribunals upon his rights of immovable property in this foreign land. The case must be one of flagrant violation of justice, which would lay the foundation of an International re- monstrance in such a matter ; unless, indeed, the provisions of some particular treaty (jo), or some public proclamation of the foreign Government, take the case out of the ap- plication of the general law. Grotius takes this distinction very strongly between the to be granted till Justice has teen demmided according; to the ordinai'y course of law. (ji) See next Chapter. PROTECTING CITIZENS IN FOREIGN COUNTRIES. 7 actually domiciled and the merely commorant foreigner, in his discussion on the important question upon which we are now about to enter, viz., as to the liability of the nation at large for the obligations incurred by their Government. — " Jure " gentium subjacent pignorationi omnes subditi injuriam " facientis, qui tales sunt ex causa permanente, sive indigenes, " sive advencB : non qui transeundi aut morcB exigucB causa " alicubi sunt " {q). Kecent times have furnished some striking examples of armed intervention of States on behalf of injured subjects. The convention in 1861 between England, France, and Spain, led to the combined expedition to Mexico, in order to enforce the payment of debts due from that State to their subjects, and for the general redress of injuries to them [r). The war of 1868, waged by England against Abyssinia, for the imprisonment and detention of British subjects — a war very remarkable for the skill and vigour with which it was conducted, and the complete success which crowned it (4 The exigencies of war may sometimes compel a belligerent to make immediate use of the property of subjects of neutral States commorant in his territory : in such cases, he must prove the overwhelming necessity which led to the act, and make, as soon as practicable, full compensation to the injured person. The conduct pursued by the Prussian Government with respect to the seizure of British vessels in the Seine by the Prussian army during the recent war with France, most fully recognised, and most amply has discharged, these international obligations {t). (j) Orotius, 1. iii. c. ii. sec. vii. (r) Ann. Reg. 1860. (s) lb. 1868. {t) See Corresjjondence (laid before Parlinment 1871), respecting the sinking of six British vessels in the Seine by Prussian troops. INTERNATIONAL LAW. CHAPTER III. EIGHT OP PEOTECTING CITIZENS IN FOEEIGN COUNTEIES. DEBTS OF THE STATE. V. The right of interference on the part of a State, for the purpose of enforcing the performance of justice to its citizens from a foreign State, stands upon an unquestionable foundation, when the foreign State has become itself the debtor of these citizens. It must, of course, be assumed that such State has, through the medium of its proper and legitimate organs, contracted such debt; whether that organ be the Sovereign alone, according to the constitution of Russia, or the Sovereign and Parliament, according to the constitution of England, the debt so contracted with foreign citizens, whether in an individual or a corporate capacity, constitutes an obligation, of which the country of the lenders has a right to require and enforce the fulfilment. Whether it wiU exercise that right or not is a matter for the consideration of its private domestic policy : " Les emprunts," Vattel says, with great precision (a), " faits pour le service de I'Etat, les dettes " creees dans I'administration des affaires publiques, sont des " contrats de droit etroit, obligatoires pour I'Etat et la nation " entiere. Rien ne pent la dispenser d'acquitter ces dettes- " la. Des qu'elles ont ete contractees par une puissance " legitime, le droit du creancier est inebranlable." («) Vattel, 1. ii. c. xiv. s. 216. Cod, 1. xi. t. 29. de jure Iteipuhlicce. "An respublica, in cujus locum " successistis, ideo, quia satiafeoisse debito voa proponitis, jus pignoris in " eo fundo liabeat, apud suum judicem quseritur. Si enim neque benefioip " sibi concesso id jus nacta est, neque specialiter in obligatione pignoris " sibi prospexit, causa ejus non separatur a ceteris creditoribus, qui habent " personalem actionem." DEBTS OF THE STATE. 9 And he adds, anticipating a revolutionary argument of later times : " Que I'argent emprunte ait tourn6 au profit.de " I'Etat, ou qu'il ait €t6 dissipe en foUes depenses, ce n'est pas " I'affaire de celui qui prete. II a confie son bien a la nation ; " elle doit le lui rendre. Tant pis pour elle, si elle a remis " le soin de ses affaires en mauvaises mains." It seems to have been in accordance with this important rule of International Law, that the following circular was addressed, in 1848, by Viscount Palmerston, the Secretary of State for Foreign Affairs, to the British representatives in foreign States : — " Foreign Office, January, 1848. " Her Majesty's Government have frequently had occasion " to instruct her Majesty's representatives in various foreign " States to make earnest and friendly, but not authoritative " representations, in supportof the unsatisfied claimsof British " subjects who are holders of public bonds and money se- " curities of those States. " As some misconception appears to exist in some of those " States with regard to the just right of Her Majesty's Go- " vernment to interfere authoritatively, if it should think fit " to do so, in support of those claims, I have to inform you, " as the representative of Her Majesty in one of the States " against which British subjects have such claims, that it is " for the British Government entirely a question of discretion, " and by no means a question of International Eight, whether " they should or should not make this matter the subject of " diplomatic negotiation. If the question is to be considered " simply in its bearing upon International Right, there can " be no doubt whatever of the perfect right which the Go- " vernment of every country possesses to take up, as a matter " of diplomatic negotiation, any well-founded complaint which " any of its subj ects may prefer against the Government of " another country, or any wrong which from such foreign " Government those subjects may have sustained ; and if the " Government of one country is entitled to demand redress 10 INTERNATIONAL LAW. " for any one individual among its subjects who may have " a just but unsatisfied pecuniary claim upon the Government " of another country, the right so to require redress cannot " be diminished merely because the extent of the wrong is " increased, and because instead of there being one individual " claiming a comparatively small sum, there are a great " number of individuals to whom a very large amount is due. " It is therefore simply a question of discretion with the " British Government whether this matter should or should " not be taken up by diplomatic negotiation, and the decision " of that question of discretion turns entirely upon British " and domestic considerations. " It has hitherto been thought by the successive Govem- " ments of Great Britain undesirable that British subjects " should invest their capital in loans to foreign Governments " instead of employing it in profitable undertakings at home ; " and with a view to discourage hazardous loans to foreign " Governments, who may be either unable or unwilling to " pay the stipulated interest thereupon, the British Govern- " ment has hitherto thought it the best policy to abstain from " taking up as International Questions the complaints made " by British subjects against foreign Governments which have " failed to make good their engagements in regard to such " pecuniary transactions. " For the British Government has considered that the losses " of imprudent men, who have placed mistaken confidence in " the good faith of foreign Governments, would prove a " salutary warning to others, and would prevent any other " foreign loans from being raised in Great Britain, except " by Governments of known good faith and of ascertained " solvency. But nevertheless, it might happen that the loss " occasioned to British subjects by the non-payment of in- " terest upon loans made by them to foreign Governments " might become so great that it would be too high a price for " the nation to pay for such a warning as to the future, and " in such a state of things it might become the duty of the " British Government to make tlicse matters the subject of " diplomatic negotiation. ee DEBTS OF THE STATE. 11 " In any conversation which you may hereafter hold with the Ministers upon this subject, you will not fail to communicate to them the views which Her Majesty's " Government entertain thereupon, as set forth in this " despatch. " I am, &c., " Palmeeston." In June, 1847, Lord George Bentinck brought forward a motion in the House of Commons, " That an Address be pre- " sented to Her Majesty, humbly praying that Her Majesty " may be graciously pleased to take such steps as may be " deemed advisable to secure for the British holders of unpaid " foreign bonds redress from the respective Governments." In replying to Lord G. Bentinck, Lord Palmer ston said : " Although I entreat the House, upon grounds of public " policy, not to impose at present upon Her Majesty's " Government the obligation which the proposed Address " would throw upon them, yet I would take this opportunity " of warning foreign Governments who are debtors to British " subjects, that the time may come when this House will no " longer sit patient under the wrongs and injustice inflicted " upon the subjects of this country. I would warn them that " the time may come when the British nation will not see " with tranquillity the sum of 150,000,000/. due to British " subjects and the interest not paid ; and I would warn them " that, if they do not make proper efforts adequately to fulfil " their engagements, the Government of this country, what- " ever men may be in office, may be compelled by the force " of public opinion and by the votes of Parliament to depart " from that which has hitherto been the established practice " of England, and to insist upon the payment of debts due to " British subjects. That we have the means of enforcing " the rights of British subjects I am not prepared to dispute. " It is not because we are afraid of those States, or all of " them put together, that we have refrained from taking the " steps to which my noble friend (Lord G. Bentinck) would " urge us. England, I trust, will always have the means " of obtaining justice for its subjects from any country upon " the face of the earth. But this is a question of expediency, " and not a question of power ; therefore, let no foreign 12 INTERNATIONAL LAW, " country who has done wrong to British subjects deceive " itself by a false impression, either that the British nation " or the British Parliament will for ever remain patient " acquiescents in the wrong, or that, if called upon to enforce " the rights of the people of England, the Qovernment of " England will not have ample means at its command to " obtain justice for them"(c). VI. The obligation of the State debtor is, if possible, yet stronger when the debt has been guaranteed by Treaty (tf). For in that case, the foreign may be entitled to a preference over the domestic creditor. As a general rule, the proposition of Martens seems correct, that the foreigner can only claim to be put on the same footing as the native creditor of the State. VII. It may indeed happen, as the same author most justly observes, that the debtor State may adopt measures of domestic finance, so fraudulent and iniquitous, so evidently repugnant to the first principles of justice, with so manifest an intention of defeating the claims of its creditors, as to authorise the Government of the creditor in having recourse to acts of retaliation, reprisals, or open war, — such measures, for instance, as the permanent depreciation of coin or paper money, or the absolute repudiation of debts contracted on the public faith of the country. The epithet permanent is used, because it could scarcely be denied that, in a case of extraordinary necessity (e), a nation might adopt temporary measures of finance with regard to its paper money, of which the foreign creditor could not justly complain. But then he has a right to the observance of two con- ditions: — 1. That the real value of the loan be eventually paid. 2. That he be placed during the interim on the same footing as the domestic creditor. (c) Hansard Pari. Deh. 1847. (d) E. g. as in the case of Greece. See Convention of 30th April, 1833, art. xii. De M. et Be C. t. iv. p. 340. (c) See also case mentioned by l^attcl, 1. ii. c. xii. s. 170. DEBTS OP THE STATE. 13 VIII. The French Government, during the last war between England and France, confiscated a debt due from a French to a British subject : subsequently, an indemnity- was stipulated for on the part of the English Government. When the matter was brought before the Commissioners appointed to adjust claims of this description, a question of great importance arose, namely, whether the debt was to be calculated according to the value of the currency at the time when the confiscation took place ; or, there having been sub- sequently to the time of this confiscation a great depreciation in the French currency, whether the value should be calcu- lated in the depreciated currency. The Commissioners held that the debt ought to be calculated according to the value at the time of the confiscation. The Privy Council, on appeal, confirmed their decree (/). Sir William Grant, one of the greatest judges ever known in England, in delivering his judgment, observed, that this case bore no analogy to the case between a debtor and creditor, whatever might be the law {g) in a case, where a depreciation of currency happened between the time when the debt was contracted, and when it was paid ; for he said : " There is a wrong act " done by the French Government : then they are to undo " that wrong act, and to put the party in the same situation " as if they had never done it. . . . It is not merely " the case of a debtor paying a debt at the day it falls due ; " but it is the case of a wrongdoer who must undo, and " completely undo the wrongful act he has done ; and if he " received the assignats at the value of 50c?., he does not " make compensation by returning an assignat which is only " worth 20. TREATIES — MODES OF CONFIRMING. 79 » in time of war, beyond what may be necessary for the security of his person, is illegal. If the giver of the Hostage fail in fulfilling his pledge, it is lawful for the receiver to retain the hostage ; but wholly unlawful, as the practice once was, to put him to death {q). If the hostage die, the giver is not, except in the case of an express stipulation, bound to replace him. The receiver has been contented with the surety, of the nature of which he was aware (r) at the time of accepting it. A more common and as it should seem a better pledge, is the retention of a place or fort until such time as the condition of the Treaty be fulfilled. This pledge or pawned thing may be what is legally called moveable property {donner des gages). Poland once placed her Crown Jewels in the hand of Prussia. Or the pledge may consist of immoveable property (donner en engagement) : they may not be actually placed in the possession of the creditor State, but assigned over by some instrument without actual delivery, which hypothecates them ; but this is an unusual transaction between States. The State which holds the pledge is bound to preserve it in good condition, but may, if the stipulated time elapse without the payment of the debt or the fulfilment of the con- dition, appropriate it. The House of Savoy hypothecated the Pays de Vaud to the Cantons of Berne and Freybourg, and on non-payment of the debt they forcibly seized and retained the territory (4). Having disposed of that species of guarantee which relates to hostages, pledges, and hypothecations, we have now to consider that kind of security which is more usually com- prised under the term Guarantee. (q) Vattel, 1. ii. c. xvi. ss. 245-61. (/•) Ih. a. 255. (s) Ounther, ii. 154. Vattel, 1. ii. c. XTJ. ss. 241-244. KliXler, s. 156. 80 INTERNATIONAL LAW. CHAPTER VII. TKEATIES — GUARANTEE. LVI. (a) Treaties may concern not only the contract- ing parties (J), but third parties who may or may not be literally contracting parties in the first instance, but the pro- tection of whose interests, or the maintenance of whose (c) status, may be the object of the Treaty. The consideration of such Treaties brings us to the very delicate question of Guaranteesh ip. The following heads appear to comprise the principal classes of Guarantee {d) : — • 1. A Guarantee that a nation shall maintain a particular status towards all other powers, e.g. of neutrality, which is a condition of the newly erected kingdom of Belgium (e). (a) Deutsclies Staats- mid Bmidesrecht von Zacharid, i. 129-137, should be consulted for the Guarantee of the former German Confederation, both from within and ivithoiit. See, too, Sclimauss, Corp. Jia: Ptihl. 1079. (6) By the Treaty of Aix-la-Chapelle (1748), the eight contracting parties mutually guaranteed each other's dominions. (e) Vide mite, vol. i. p. 147. — Intei-vention as to incorporation of Italian States of Austria in the German Confederation without consent of the Powers who signed the Treaty of Vienna. (d) See the remarkable modem instances of Belgium and Greece, vol. i. pp. Ill, 117. (e) Vide ante, vol. i. p. 114. Vattel and other Tirriters make a distinction between caution (Surety) and garant (Guarantee). In the former case, the surety must make good the default of the principal ; in the latter the guarantee is only bound to do his utmost to obtain the performance of the principal. It would manifestly require an express provision to constitute the Guarantee of a Treaty a Surety in this sense for the performance of its conditions. The distinction, therefore, is not taken in the text of this work. GUARANTEE 81 2. A Guarantee that a particular State shall do a par- ticular act, e.g. discharge a debt, or resign a territory, 3. A Guarantee to defend the particular constitution or territory, or particular rights, of a country, contra quos- cunque (/). 4. A Guarantee to defend the particular constitution of a State generally against all attacks which may assail it, whether Foreign and External or Domestic and Internal. Such a Guarantee, being an engagement which binds a foreign power to take part in the civil quarrels of an Inde- pendent State, appears to be in theory not consistent with the perfect and uncontrolled freedom which is of the essence of such a State, and in practice to have proved too often fatal to her liberties and to her very existence. Having regard, however, to the Treaties of Guarantee relating to the Protestant Succession in England, which will be presently mentioned, it seems impossible to deny, that such a Eight of Intervention {g) has been, and may be conceded by one nation to another, without entailing the loss of legal personality in the nation which concedes it — without reducing that nation to the status already dis- cussed (Ji), of a State so protected as to be dependent. This is a construction of Guaranteeship opposed certainly to every presumption of public law, and one which can only be created — if, according to modern practice and usage, it can be created at all — by express words. Such a Treaty is fraught with mischief to the best interests both of Public and International Law. The constitutions of the greatest as well as of the smallest States, have been at different periods of history the sub- ject of Guarantees, especially against any invasion from (_/") Vide post, construction of this term. {g) It is, perhaps, partly to be inferred from the careful and express renunciation of any such right on the part of the Powers who guaranteed the kingdom of Belgium. Vide post, p. 78. (A) Vide ante, vol. i. pp. 97, 99. VOL. II. G 82 INTERNATIONAL LAW. Third (i) Powers, and perhaps in some cases the terms have not extended the principle of intervention beyond this limit. The British, the Austrian, the Spanish Empires, as well as the States of Poland, Geneva, and of minor German principalities, have been all examples of the application of this principle. LVII. At the peace of Westphalia, 1648, France and Sweden, as well as the various principalities which composed the German Empire, became Guarantees for that first great settlement of Europe, from which a considerable portion of Modern International Law derives its origin. Guarantee- ship of this kind was then a device of comparatively recent date for securing fidelity to International engagements, having succeeded to the more feudal and coarser expedient of appointing Neutral Princes and Free Towns Conserva- tores of Treaties. The Guarantee undertaken by France and Sweden, at this Treaty, would seem to have necessitated their intervention in the internal aifairs of another nation ; for the obligation im- posed upon all the " contractans et garans," as they were called, is set forth in the 116th Article of the part of the Treaty, signed at Munster, and in the 1 7th Article of the part signed at Osnaburgh is thus expressed; "Que tons ceux qui " ont part a cette transaction soient obliges de defendre et pro- " t^ger, tous et chacun, les lois ou conditions de cette paix (k), " contrequi que ce soit,sa,ns, distinction de religion; et s'il arrive («•) Vattel, 1. ii. c. xvi. ss. 235-239. Kliiber, ss. 157-8. WTieaton, pt. iii. c. ii. 12. (Ji) This is a clause usually termed " contra quoscunque.'" Dr. Tmss {Duchies of Schleswig and Holatein, pp. 124-5) observes : " No rule of International Law is more clear than that the convention of guaranty does not apply to the case of political changes. If, for instance, Denmark had guaranteed to the Princess Anne of England the undisturbed pos- session of the British throne upon the death of William III. contra quoscunqne, no castis fcedeiis would have arisen if the Highlanders of Scotland had attempted to restore the Crown to the son of James II. ; but if Louis XIV. or Philip V., as Foreign Powers, had sent an army GUARANTEE. PEACE OF WESTPHALIA. 83 " que quelque point en solt viole, I'ofFense tichera premi^re- " ment de detourner I'ofFensant de la voie de fait, en soumet- " tant la cause a une composition amiable, ou aux procedures " ordinaires de la justice ; et si, dans I'espace de trois ans, " le difFerend ne pent etre termine par I'un ou I'autre de ces " moyens, que tons et chacun des interesses en cette transac- " tion soient tenus de se joindre k la partie 16s6e, et de I'aider " de leurs conseils et de leurs forces a repousser I'injure, " apr^s que I'ofFense leur aura fait entendre que les voies de " douceur et de justice n'ont servi de rien; sans prejudice " toutefois au reste de la juridiction d'un chacun, et de I'ad- " ministration competente de la justice, suivant les lois et " constitutions de chaque prince et etat " (Z). In the Treaty of Hanover, concluded in 1725 between Great Britain and Prussia, this Guarantee is expressly recited and confirmed (m); and in 1792, the first inter- vention of Austria and Prussia (w), in the war of the French Revolution, was founded upon the obligations contracted by these States in 1648, at the time when France obtained the sovereignty of Alsatia; the German Sovereigns were in- voked in 1792, as the guarantees of the Treaty of Westphalia, to protect the private property and rights of jurisdiction of the minor German princes in Alsatia. Upon this Treaty also, Russia has more than once rested her claim to interfere in the arrangements of the German constitution (o). to co-operate with the insurgents in depriving the Princess Anne of the succession, there would have been at once an undeniable casus foederis. Even an expression so indeiinite as contra quoscungtie is limited by the nature of the subject-matter; it may apply to the slightest international interruption, from whatever quarter it may be threatened ; but even a OivU War will not extend its operation to political troubles." — Sed vide post, pp. 75, 6, 7 ; and see Vattel, 1. ii. c. xiii. s. 197. " On doit sans doute dSfendre son alli^ centre toute invasion, contre toute violence ^trangere, et meme contre des sujets rebelles." (I) Bumont, JRec. des Tr. vol. iii. p. 562. (m) Schmauss, 2014. (m) De Martens, 2. 1. viii. s. 338, and note (n). (o) Wheaton's Hist. 346, and 350. G 2 84 INTEENATIONAL LAW. LVIII. The Treaty of Teschen in 1779 closed the war which had broken out in 1777 with respect to the succession to the kingdom of Bavaria, and renewed by its 12th Article the Treaty of Westphalia. This Treaty of Teschen was concluded under the mediation, specially invoked by the contending parties, of France and Russia, and by the 16th Article of it these mediatorial Powers were constituted Guarantees of its provisions ; one of which, as has been stated, was the renewal of the Treaty of Westphalia. LTX. By the 12th Article of the Treaty of Vienna, con- cluded between Austria and Spain in 1725, the latter country bound herself to guarantee the order of succession in Austria commonly called the Pragmatic Sanction, guarantigiare quoque spondet eum succedendi ordinem, quern sua Majestas Casarea, &c., declaravit et stabilivit (jo). Prance bound herself to the same Guarantee by the 10th Article of the Treaty of Vienna, 1738. Austria, on the other hand, reciprocally guaranteed the Order of Succession to the throne of Spain, in the same Article of the same Treaty of Vienna, 1725. Prussia also, under Frederick William I., guaranteed her Pragmatic Sanction. The result tends to justify the remark of Frederick the Great, that Guarantees (p) "Sua Majestas Csesarea adpromittit, ordinem succedendi in regno Hispaniae receptum, atqne per tractatum Trajectensem, per renuncia- tiones, item vi quadruplicis fojderis snbseoutas, nee non per praesens pacis instrumentum confirmatum, tueri se, guarantiamque desuper prsestare, et quoties opus, manutenere velle ; Ticissim JRex Hispanife tueri, et guaran- tigiare quoque spondet, eum succedendi ordinem, quem sua Majestas Caesarea ad men tern majorum suorum in serenissima sua domo ex pactis ejusdem antiquis, in forma perpetui, indivisibilis, ac iuseperabilis fidei- commissi primogenitura affecti pro universis suje Majestatis utriusque sexus Hferedibus et successoribus declaravit et stabilivit, quique subinde ab ordinibus et statibus universorum Regnorum, Archiduoatuum, Duca- tuum, Principatuum, Provinciarum, ac ditionum, ad serenissimam domum Austriacam jure baereditario spectautium, communi omnium voto sus- ceptus, ac grato submissoque animo agnitus, atque in vim leois sanction- isque pragmaticse perpetuo valiturae in publica monumenta relatus fuit." — Schmanss, t. i. 198&-7. GUARANTEE. PRAGMATIC SANCTION. 85 were like filigree work, better to look at than to use (q). Scarcely had the Emperor Charles VI. closed his eyes in death, before the vanity of his elaborate attempts to engage all nations to secure to his daughter, Maria Theresa, the undivided inheritance of her father, was fully manifested. Every one of these nations, upon the most frivolous pretexts, disowned the obligations of the solemn Treaty by which they had bound themselves (r). The character of the Guaranteeship undertaken by the great European Powers with reference to the Duchies which form an integral part of the Crown of Denmark, underwent much discussion at a recent period. These Treaties were — 1. The Treaty contaiuing the British Guarantee, 1720. 2. The Treaty containing the French Guarantee, 1720. 3. The Treaty of Copenhagen, 1727. 4. The Treaty containing the German and Eussian Gua- rantee, 1732 (s). LX. When the Parliament of the British Empire had settled the succession to the throne, after the death of Queen Anne, upon the Princess Sophia, Electress and Duchess Dowager of Hanover (the granddaughter of James I.), and upon her issue, with the condition that they should be mem- bers of the Church of England, the Government were unhappily not content with this domestic pledge for the security of the liberties of their country, but insisted on its receiving the Guarantee of the Powers, who became con- tracting parties to many of the Treaties which were entered into from the year 1713 to the Peace of Aix-la-Chapelle in 1748 : and such a Guarantee Was accordingly rendered by France, Austria, Spain, and especially by Holland, in the Treaty of 1713, called the Treaty "of the Guarantee of the (q) " Toutes les garanties de mon temps sont comme I'ouvrage de filigrane, plus propre a satisfaire les yeux qu'a etre de quelque utility." — JSCistoire de mon Temps (CEuvres posthumes), t. i. c. ix. p. 229, cited by De Martens, 1. ii. c. ii. s. 63, n. 6. (r) Wheatm, Hist. pp. 166-170. («) Tvnss, Duchies of Schleswig and Holstein, pp. 120-151. 86 INTERNATIONAL LAW. ." Protestant Succession and of the Dutch Barrier," in the second article of which the statute of AVilliam III. is re- cited (?). LXI. It may be well to cite in this place the opinions of two eminent persons, both with no mean pretentions to be heard upon any question of International Jurisprudence, upon the conduct of Great Britain in this respect. The Abbe de ^Nlably remarks (u) : — " II est surprenant que dans le moment que les Anglois " changent leurs loix de succession, qu'ils excluent les " Stuarts du trone, et qu'ils sentent I'avantage de sonmettre " le Prince k la nation; ils se Kent eux-memes les mains, en " voulant que toute I'Europe s'engage a maintenir et a " defendre les actes que leur Parlement a passes en faveur " de la Maison de Hanovre. Cette conduite ne sembla pas " prudente aux personnes qui sont iastruites des loix, des " principes, et des interets des Anglois. lis devoient se " bomer k exiger de leurs voisins qu'ils ne se meleroient en " aucune fagon de leur gouvernement ; et qu'ils ne favori- " seroient en aucune maniere les personnes qui feroient des " entreprises contraires aux actes du Parlement." Quite in accordance with this opinion is that of Mr. Jenkinson, afterwards Earl of Liverpool, expressed in his celebrated defence of the conduct of Great Britain, in 1758 (x) : — " The second species of defensive alliance, which subsists " between Great Britain and HoUand, is that which was " first agreed to, in the Treaty of Barrier and Succession " of October 29, 1709; and again more particularly stipu- " lated in another treaty, to the same purpose, of January " 29, 1713. The design of this treaty is the guaranty " of the Dutch barrier on the one part, and the guaranty (t) St. 12 & 13 Wm. ni. c. :?, iSchmatiss, 1288. (») Droit Public, t. ii. p. 156. (.r) Remarks of the Earl of Liverpool, in Discourse on the Conduct of the Government of Great Britain in respect to Xtutral Nations, pp. 75-6. — Cabinet of Scarce and Celebrated Tracts, published at Edinburgh. GUARANTEE. GREAT BRITAIN. PROTESTANT SUCCE8SION.87 " of the firmest barrier of British liberty — the Protestant "succession — on the other. The stipulations are, 'that in " ' case either should be attacked, the other should furnish, " ' at the requisition of the party injured, but at his own ex- " ' pense, certain succours there expressed ; and if the danger " ' should be such as to require a greater force, that he shall " ' be obliged to augment his succours, and ultimately to act " ' with all his power in open war agaiast the aggressor.' I " pretend not to make any use of this Treaty in the present " case, and only mention it to give a fuller view of the " alliances which subsist between us. Here, however, I will " indulge a wish that the case of this guaranty, as far as it " relates to the rights of the Crown of Great Britain, may " never again exist. I always read with sorrow that there " ever was a time when the unfortunate dissensions of our " people, in a point where the whole of their happiness was " concerned, should have made it necessary to add any other " sanction to our laws, or any other security to our con- " stitutional rights, than such as our own power can afford " them ; these days, hoioever, of shame now, I hope, are " passed. " LXII. The doctrine and practice of Guaranteeship, in its proper sense, i.e. against third powers, has not expired with the last Treaty of Vienna ; our own times furnish us with two iastances, as memorable as any that preceded them, in the newly-created kingdoms of Greece and Belgium (y). By the 4th article of the Treaty concluded at London in 1832 between France, Great Britain, Russia and Bavaria, it is provided " that Greece under the Sovereignty of Prince " Otho and the Guarantee of the three Courts, shall form a " monarchical, independent State." The other conditions of the Treaty, especially the limitations which follow with respect to the future succession to the throne, and the con- dition that the crown of Greece shall never be worn by the (y) Vide ante, vol. i. p. 111. 88 INTERNATIONAL LAW. Sovereign of any other country, were of course equally under the Guarantee of these Powers (z). LXIII. By the Treaties between Austria, France, Great Britain, Prussia, Russia, Holland and Belgium, signed at London on the 19th of April, 1839, it is declared that " La " Belgique formera un etat independant et perpetuellement " neutre Elle sera tenue d'observer cette neutrality envers " tous les autres etats." From the period of the breaking out of the Revolution at Brussels in 1830 tiU this con- cluding Treaty, a variety of negotiations and a vast number of protocols passed between the Powers just mentioned, relative to the separation of Holland and Belgium ; and on the 15th of November, 1831, a treaty was concluded which was in all its essential parts literally the same as that of 1839. All these negotiations and protocols, as well as the Treaties of 1839, show that the peculiar constitution of Belgium, as an independent but perpetually neutral state, is under the Guarantee of the Five great Powers, and the arrangements with respect to the Duchy of Luxemburg are also under the Guarantee of the Germanic Confederation. It should be observed that during the progress of the negotiations respecting Belgium, the intention of future interference with the internal and domestic affairs of that kingdom was distinctly disclaimed by the Guarantees (a). The further Treaties in 1870, of England, France and Prussia, for securing the independence of Belgium, were adverted to in the former volume (b). (z) lb. p. 117. (a) See Letters of Austria, Sussia, Pntssia, and England, to France. — Papers laid hefore Parliament as to Belgium, p. 69. (J) Vol. i. pp. 115-498. There was some debate on treaties of guarantees in the Plouse of Lords, March 6, 1871. — Hansard, vol. cciv. pt. v. INTEEPEETATION OF TREATIES. 89 CHAPTEE VIII. INTERPRETATION OF TREATIES (a). LXIV. (b). All International Treaties are covenants botuB Jidei, and are, therefore, to be equitably and not technically construed (c). LXV. The imperfection of language as an Instrument of expressing intention must occasionally, if there were no other reasons, render interpretation necessary (d). (a) The authorities principally relied upon in this Chapter are — iNTEElfATIONAi JuBISTS. Oratius, 1. ii. c. xyi. Puffendorf, 1. v. c. xii. Vattel, 1. V. c. xii. Mictherforth, B. ii. c. Tii. COMMENIATOES ON" THE ROMAN LaW. AUCIENT. Donellus de Jur. Civ. 1. i. c. xv. Pothier on Obligations, p. i. c. i. art. vii., translated and amplified by Evans, vol. i. p. 63 ; vol. ii. p. 35, number 5. Bomat. PrU. t. i. s. 2. ; tr. ch. 12. MODBElf. Savigny, R. R. i. Viertes Kapitel. Miihlenbruch, Doctrina Pandect, i. sa. 58-65, s. 116. Publicists. Suarez, De Lig., &c. 1. vi. Story on the American Constitution, vol. i. c. v. Weitees on English Law. Broom! s Legal Maxims, c. viii. The Interpretation of Deeds and Written Instruments. Bacon (Matthew), Abridgement, tit. Statutes, i. Mules to be observed in the Construction of a Statute. Wildman's International Law, i. pp. 177-185, (6) Grot. 1. ii. c. xvi. De Interpretatione. (c) lb. 1. ii. c. xvi. 11. " Disorimen actuum bonss fidei et stricti juris, quatenus ex jure est Eomano, ad jus gentium non pertinet." Maltass v. MaUass, 1 Robertson's Reports, p. 76. (d) " Sed quia interni actus per se spectabiles non sunt, et certi aliquid 90 INTERNATIONAL LAW. But in truth there are other reasons ; in all laws and in all conventions the language of the rule must be general, and the application of it particular. Moreover, cases arise vrhich have, perhaps, not been foreseen, which may fall under the principle, but which are not provided for by the letter, of the law or contract. Circumstances may give rise to real or apparent contradictions in the different dispositions of the same instrument, or of another instrument, in pari materia, which may require to be reconciled. These are difficulties which may arise between contracting parties disposed to act honestly towards each other. But they may not be so disposed ; one of them may endeavour to avoid his share of the mutual obligation. Indeed there is no need for a priori reasoning on a subject amply demonstrated, both in the covenants of individuals and the Treaties of States, to be a matter of practical necessity. LXVI. The interpretation is the life of the dead letter ; but what is meant by the term " interpretation ? " The meaning which any party may choose to affix ? or a meaning governed by settled rules (e) and fixed principles, originally deduced from right reason and rational equity, and subse- quently formed into laws ? Clearly the latter. The necessi- ties of the great society of States as much demand such laws for the exposition of their Treaties, as the necessities of each individual State for the covenants of their subjects. The rules by which International covenants are interpreted, have been collected by jurists both from the Roman law itself, from commentators upon that law, and from the writings of Inter- national Jurists. Grotius, Puffendorf, Vattel, and Ruther- forth, have each written chapters upon this subject, which have obtained general approbation from the manifest equity statuendum est, ne nulla sit oMgatio, si quisque sensum quern vellet sibi affingendo liberare se posset ; ipsa dictante natuiali rations jus est ei, cui quid promissum est, promissorem cogere ad id quod recta interpretatio suggerit, nam alioqui res exitum non reperu-et : quod in moralibus pro impossibili babetur."— (rroiiM^, 1. ii. c. xvi. s. 1. (e) Vattel, ib. s. 265. TREATIES INTERPRETATION OE. 91 of the doctrines which they contain, and the clear manner in which they are expressed. But great advantage is to be derived from the writings of Suarez and Donellus, Pothier and Domat, who have treated the subject of the interpre- tation of laws and covenants in a manner, which combines the profoundest reasoning with the most perspicuous arrange- ment. The value of such writers, as expounders of Inter- national as well as of Public Law, has already been dwelt upon ( f). Sound principles upon this subject are moreover to be found scattered up and down the pages of the Roman Law, with respect to the interpretation of contracts (y), laws, and testaments. The Roman Lawyers were, indeed, apt to confound the limits of interpretation and of explanation by a new law, but they were careful not to apply to the Public Treaty (publica conventio^ (/t) the peculiarities at- tending the forms and rules of the private covenant (e). There is a manifest distinction between Laws, and Covenants or Treaties, which modifies in some degree the application of the rules of interpretation, transferred from the former to the latter. The Law enacted by the Supreme Power of the State (/) Vol. i. p. 65. (ff) Savigny remarks {Obligationenrecht, II. 189), that with respect to contracts, these principles are of a very general character, and scarcely afford any aid beyond that which an intelligent and dispassionate consideration of each particular case would discover. This may be so ; but the circumstance adds to their value as rules of Interpretation of Contracts between States having no common superior. — Vide ante, vol. i. c. ix. {h) Big. ii. 14, 5, Be Factis. (i) Gains, iii. s. 94 Having remarked that only Roman citizens could validly contract in the formula, " Spondes ? Spondeo," continues, " Unde dicitur, uno casu hoc verbo peregrinum quoque obligari posse, velut si Imperator noster Piincipem alicujus peregrin! populi de pace ita in- terroget : Pacem futuram spondes ? vel ipse eodem modo interrogetur. Qitod nimium sultiliter dictum est: quia si quid adversus pactionem fiat non ex stipulatu agitur, sedjure belli res vindicatur." This passage is cited by Savigmj, R. R. i. 310, n. c. It affords an additional proof that the Romans were not ignorant of International Law. — Vide ante, vol. i. Pref. p. xlvi. ; p. 31, &c. ; App. II. 92 INTERNATIONAL LAW. is to be interpreted according to the intention of that one power. The Covenant or Treaty contracted by two or more parties is to be interpreted with reference to the intention of them all — " conventio seu pactio est duorum vel plurium in " idem placitum consensus " (It). It is proposed to give a con- cise statement of those leading principles and rules, which appear to be sanctioned by the reason of the thing, by usage, by the authority of jurists, and by the rules and analogies of the Roman Law (J), vdth respect to the interpretation of Treaties. LXVII. The general heads under which, for the sake of perspicuity, we may range the principles and rules of Interpretation, are the following : — a. Authentic Interpretation, that is, the exposition supplied by the Lawgiver himself (m). /S. Usual Interpretation, that which is founded upon usage and upon precedent. 7. Doctrinal Interpretation ; that which is founded upon a scientific exposition of the terms of the instru- ment, and which, according to many jurists, is the only interpretation properly so called. This again admits of a sub-division into, 1. Granunatical, and, 2. Logical exposition. LXVIII. Authentic Interpretation, in its strict sense, means the exposition given by the Lawgiver himself; it is, therefore, strictly speaking, inapplicable to the case of Treaties ; but a contemporanea expositio may be gathered from the acts of the parties which preceded, accompanied, and followed soon after the making of the Treaty. In truth, however, this kind of interpretation generally takes the form of a new law, reciting and removing the doubts of the old one ; and this mode of interpretation may, of course, be {h) Big. ii. 14, 1. 1. Boxoyer's Third Heading, (I) Vide ante, vol. i. cc. iii. viii. pp. 14, 67. (m) Cod. i. 14, 12. "Tarn conditor quam interpres legum solus Imperator juste existimabitur." TREATIKS — INTERPRETATION — GRAMMATICAL. 93 adopted in the case of Treaties. The contracting powers may promulgate a subsidiary and explanatory Treaty, the preamble of which, like the preamble of a Statute, may be declaratory with respect to existing doubts upon the construction of a former convention. But this is, in fact, not so much a particular mode of interpretation, as the en- actment of a new law, or the conclusion of a new Treaty, as the case may be. LXIX. Usual Interpretation is, in the case of Treaties, that meaning which the practice of nations has affixed to the use of certain expressions and phrases, or to the conclusions deducible from their omissions, whether they are or are not to be understood by necessary implication. A clear usage is the best of all interpreters between nations, as between indi- viduals ; and it is not legally competent to either nation or party to recede from its verdict (n). LXX. Doctrinal Interpretation is, as has been said, either, 1. Grammatical or Philological; or, 2. Logical; and first, — As to Grammatical Interpretation, we must not confound translation and etymology with interpretation. It has been well observed (o) that though it may not be easy to determine with exact precision where the province of the grammarian and the lexicographer ends and that of the interpreter begins, and though their provinces may be scarcely distinguishable upon their confines, yet that in their remotest extremities, and (to) "Minime sunt mutanda, quae interpretationem certam semper habuerimt."— D2>. I. 3. 23. " Si non appareat quid actum est : erit consequens ut id sequamur quod in regione in qua actum est frequentatur." — lb. L. 17-34. " In obscuris inspici solet, quod verisimilius est, aut quod plerumque fieri solet." — Ih. 114. " Si de interpretatione legis quseratur, in primis inspiciendum est quo jure civitaa retro in ejusmodi casibus usa fuisaet : optima enim est legum interpres consuetudo." — lb. i. 3, 37. " Nam Imperator noster Severus reacripsit : in ambiguitatibus, qure ex legibus proficiscuntur, consuetudinem, aut rerum perpetuo similiter judicatarum autoritatem, vim legis obtinere debere." — lb. 38. (o) Rutherfortk, b. 2, c. vii. 94 INTERNATIONAL LAW. for practical purposes, they are sufiSciently distinct. A competent knowledge of the language in which the covenant is written is, in fact, necessarily supposed to precede or accompany the work of interpretation ; and with respect to etymological refinements, they can but rarely have any place in the legitimate construction of a law or contract; the mean- ing of the words employed by the lawgiver, or by the parties, is to be sought in the common usage and custom, which indicate the consent of those who use them, that they should bear a particular meaning (p). It certainly may happen, that the meaning affixed by con- temporaneous use and practice, upon the particular words employed, may have undergone, through lapse of time and change of fashion, so much subsequent alteration, that the due construction of the instrument may require a knowledge of the antiquated as well as of the present use of the words, though such an instance would probably be of an exceptional character. There are, however, certain general rules of literal interpretation, which have been sanctioned by all jurists, and which should be mentioned in this place. 1. The principal rule has been already adverted to, namely, to follow the ordinary and usual acceptation, the plain and obvious meaning of the language employed. This rule is, in fact, inculcated as a cardinal maxim of interpretation equally by civiUans, and by writers on International Law. Vattel says that it is not allowable to interpret what has no need of interpretation. If the meaning be e^•ident, and the conclusion not absurd, you have no right to look beyond or beneath it, to alter or add to it by conjecture. WolflP observes, that to do so is to remove aU certainty from human transactions(5'). To affix a particular sense,founded on etymo- (p) Ridherforth, b. 2, cc. 7-9. (y) " Standum omnino est iis, quse verbis expressis, quorum raanifestua est significatua, indicata fuerunt, nisi omnem a negotiis hmnanis certitu- dinem removere volueris." — Jits ^at. part vii. n. 822. " Non aliter a significatione verborum recedi oportet, quam cum mani- festum est aliud sensisse testatorom." — Dig. xxxii. i. 69. Upon this passage, Donelhis remarks, " De testatore hoc scriptum est TREATIES INTERPRETATION GRAMMATICAL. 95 logical or other reasons, upon an expression, in order to evade the obligation arising from the customary meaning, is a fraudu- lent subterfuge aggravating the guilt of the fcedifragous party, " fraus enim adstringit non'dissolvit perjurium " (r). Vattel cites as instances of such conduct, the act of a Turkish Emperor, who having promised a man to spare his head, caused him to be cut in two, through the middle of the body; and the act of Tamerlane, in ordering the soldiers, whose blood he had promised not to shed, to be buried alive. In such cases as these, the fraud is flagrant ; but the prin- ciple, by which they are condemned, applies to all cases in which an attempt is made, " To palter with us in a doutle sense, " To keep the word of promise to our ear, "And break it to our hope " (s) 2. The construction is to be derived from a due consideration of the language of the whole instrument, and not from that of particular portions or sentences (t) of it, or in the language of Donellus (u), " antecedentia ipsius legis et sequentia iu " primis spectanda, ex his ambiguitas sjepe explicatur" (x). in 1. non aliter. D. de leg. 3. sed multo magis ad legislatores pertiuet, qui intelligentes cum sint, et iu commune quid pr£ecipiaut et consulant, dant operam, ut quam maxime signiflcanter et perspicue loquantur, ut intelligantur ab iis, quibus consultum, et quos eosdem legi parere volunt, ac propter peritiam loquendi et dootrinam rerum multo facilius id con- sequi possunt, quam privati testatores. TJnde intelligimus, si verbum idem proprie quid signiflcet, et aliud improprie seu abusive, propriam significa- tionem verbi sequendam esse. Sed hoc, ut dixi hactenus, nisi appareat aliud sensisse legem." — Comm. De Jur. Civ. i. c. 15, 9, 43. " Verbum hoc : si quis, tarn masculos quam feminas complectitur." — Dig. L. 16, 1 {De Verhorum significatione). "Nurus appellatio etiam ad pronurum et ultra porrigenda est." — lb. L. 16, 50. (r) Cic. de Off. 1, 3, c. 32, 113. (s) Macbeth, act v. sc. vii. (f) Vide ante, vol. i. p. 250. (m) Comm. de Jur. Civ. i. 15, p. 43. {x) "Inoivile est, nisi tota lege perspecta, una aliqua particula ejus proposita judicare vel respondere." — Dig. i. 3, 24. "Inoivile, id est iniquum et contra jus." — Donellus, Comm. deJur. Civ. 1, 13, p. 32. Vattel, 1. 2, c. 17, 285. 96 INTERNATIONAL LAW. It may be necessary to affix a diiferent signification to the same term ia diiferent parts of the same instrument, the term being construed according to the subject matter, pro subjecta materia (y). Vattel illustrates this position by an example showing that the word day might be employed in two meanings in one and the same Treaty. It might be stipulated in a Treaty that there should be a truce for fifty days, upon the condition that during eight successive days the belligerent parties should, through their agents, en- deavour to eflfect a reconciliation ; ihe fifty days of the truce would be days and nights or days of twenty-four hours, according to the ordinary legal computation ; but it would be irrational to contend that the condition would not be fulfilled unless the agents of the belligerent parties were, during the eight days, to labour night and day without in- termission. 3. Words of art, or technical words are to be construed according to their technical meaning. This is as universal a maxim as any that can be found in jurisprudence. It finds its application in International Jurisprudence chiefly upon questions of geographical or local distinctions (z). LXXI. The principles which have been laid down may (y) " Prseter haec multa reperimus tractata et de petitione hereditatis, et de distractis rebus hereditariis, et de dolo prseterito, et de fruotibus, de quibus, quuni forma senatusconsulto sit data, optimum est, ipsius, senatusconsulti interpretationem facere, verbis ejus relatis." Then follow tbe -words of the S. Con^tdtmn, and the rule deduced is, " Aptanda est igitur nobis singulis verbis senatusconsulti congruens interpretatio."- — Dig. V. 3, 20, 6. " Utrum autem omne pretium restituere debebit bonse fidei possessor, an vero ita demum, si factus sit locupletior ? videndum ; finge pretium acceptum vel perdidisse, vel consumsisse, vel douasse. Et verbum quidem : pervenisse, ambiguum est, solumne hoc contineat, quod prima rations fuerit, an vero et id, quod durat ? Et puto sequentem clausulam sena- tusconsulti sequendam, etsi hsec sit ambigua, ut ita demum computet, si factus sit locupletior." — lb. a. 23. (z) Grot. II. 16, 13 ; III. 20, 33. Vattel, iv. e. S3, Sir L. Jenkins, ii. 736. INTERPRETATION — GENERAL RULES. 97 suffice for the due interpretation of those Treaties in which the language clearly expresses the intention of the contract- ing parties, and with respect to which there is no circum- stance which prevents us from recognising this intention so expressed, as containing the true meaning of the contract. LXXII. We have now to consider those cases in which the language (a) employed gives rise to a doubt as to the intention of the contracting parties, and therefore requires for its elucidation a logical interpretation. This doubt may be occasioned either by the uncertainty or by the impropriety of the language. Each of these divisions may admit of separate rules of interpretation. There are, however, certain general rules which may be said to be equally and without distinction applicable to both. LXXIII. (6) First, — The rule which has already been adverted to, of deriving the interpretation of a particular passage from a comparison with the whole context of the instrument, and which mode of interpretation belongs as much to the logical as to the grammatical division of the subject. Mr. Wildman illustrates this position by the following example : — " the ninth article of the Treaty of " Utrecht provided that the port of Dunkirk should be " destroyed : ' Nee dicta munimenta portus moles aut " ' aggeres denuo unquam reficiantur.' The plain inten- " tion of this stipulation was, to prevent the existence of a (a) " Scripti et voluntatis frequentissima inter consultoa qussstio est : et pars magna controversise juris liinc pendet." — Quintil. Inst. Orator, lib. vii. c. 6. (6) " Deprehenditur sententia angustior seu lex plus scripsisse, minus sensisse, quatuor ex rebus ; quarum in singulis si verba ex sententia temperari, nee longiua produci animadverterimus, turn veram esse legem interpretationis quam dixi intelligemus. Deprehenditur igitur ex his rebus : (1.) ex aliis partibus ejusdem legis ; (2.) ex ratione legis ; (3,) ex sequitate ; (4.) ex aliis legibus. Quae omnia cum ad sententiam et vim legis cognoscendam pertineant, diligenter in omnibus rebus quasrenda et spectanda saxA,."—Dmellus, Comm. de Jur. Civ. i. 13, p. 31. Big. L. 16, 126, contains a good illustration of the rule. VOL. II. H 98 INTERNATIONAL LAW. " French port of military equipment in the midst of the " Channel. The King of France, while he was destroying " the port of Dunkirk, in accordance with the article of the " Treaty, was constructing at Mardick, at the distance of a " league, another port of greater dimensions and importance. " The Eno-lish Government remonstrated upon the absurdity " of putting such a literal construction upon the article as " would entirely defeat its object (c) ; and the French " Government ultimately acquiesced, and discontinued the " works (d). It was stipulated by the fourth article of the " Treaty between France and England, concluded at the " Hague in 1777, that no new port should be formed within " two leagues of Dunkirk and Mardick " (e). Secondly (/), — The rule of considering the ground or rea- son {ratio legis) in which the Treaty originated, and the object of those who were parties to it. This is a less safe and less certain mode of interpretation, and one which re- quires more caution in its use and application. Thirdly, — The rule of instituting a comparison between the Treaty in dispute and other Treaties, whether prior, pos- terior, or contemporary, upon the same subject and between the same parties. This is a source from which the intention of the contracting parties may generally be fairly and safely derived ; at all events it may be derived from this source in a less suspicious manner than from a reference to those facts and circumstances (themselves, perhaps, a matter of (c) Grotius, ii. 16, xx. 2, 3. ((f) Floss, iv. 388, et seq. (e) Wildman's Intern. Law, vol. i. p. 178. (/) "Sigeneralem aliqnam orationem legis alia pars ejusdem legis nominatim non mutabit, aut minuet : secundo loco rntio legis consulenda est. Ex hae prtecipue voluntas et sententia legis perspicitur. Quia imo ratio nihil est, nisi voluntas legis : siquidem ratio et causa legis est id, quod lex sibi propositum babuit, ut legem constitueret ; id, propter quod lex lata est, et sine quo lata non esset ; denique quod lex in jure consti- tuendo consequi voluit." — Donellus, Comm. de Jur. Civ. i. 13, p. 32. — Grot. ii. 16, 8. TNTERPRETATION GENERAL RULES. 99 dispute,) which immediately preceded the conclusion of the Treaty {g). Fourthly, — The rule of having regard to the consequences, to the justice or injustice, advantage or disadvantage, which would ensue from affixing a particular meaning to the doubtful expressions. This is, indeed, a mode of interpretation to which recourse must be still more sparingly and more cautiously had. Fifthly, — When a provision or clause in a Treaty is capable of two significations, it should be understood in that one which will allow it to operate, rather than in that which will deny to it eifect (h). Thus, according to Municipal Law, if in a partition between Peter and Paul^ it is agreed that Peter shall have a way over his land, though in strict grammatical construction this would mean his own land ; yet as in that sense the agreement would be nugatory, it must be construed to mean the land of Paul(J). This rule is perhaps a corollary from that which has been already stated, viz., that the intention, rather than the words, of the con- tracting parties is to be considered. Both rest on the {g) " Non est novum, ut priores leges ad poateriores trahantur."— Z)»}?. i. 3, 26. " Ideo, quia antiquiores leges ad posteriores traH usitatum est, semper quasi hoc legibus inesse credi oportet ut ad eas quoque personas et ad eas res pertiueant, quse quandoque similes erunt." — lb. 27. " Sed et posteriores leges ad priores pertinent, nisi contrariee sint ; idque multis argumentis probatur." — lb. 28. (A) " Quoties in stipulationibus ambigua oratio est, commodissimum est id accipi, quo res, qua de agitur, in tuto sit." — Dig. xlv. i. 80. (j) Pothier (Hvans' transl.) i. p. 54. " Si tibi pecuniam donassem, ut tu mibi eandem orederes, an credita fleret? Dixi in hujusmodi propositiouibus non propriis verbis nos uti; nam talem contractum neque donationem esse, neque pecuniam creditam ; donationem non esse, quia non ea mente pecunia daretur, ut omnimodo penes accipientem maneret; creditam non esse, quia exsolvendi causa magis daretur, quam alterius obligandi. Igitur si is, qui pecuniam hac conditione accepit, ut mihi in creditum daret, acceptam dederit, non fore creditam ; magis enim meum aecepisse intelligi debeo. Sed hsec intelli- genda sunt propter subtilitatemverborum; benigniua tamen est, utrumque valere." — Dig. xii. i. 20. H 2 100 INTERNATIONAL LAW. presumption of common sense, that no contract is entered into with the intention of being nugatory (k). Sixthly, — When the same provision or sentence expresses two meanings, that one which most conduces to carry into effect the end and object of the Convention should be adopted (Z). Seventhly, — An ambiguity in the terms of a Convention may sometimes, — due regard being of course had to the subject matter, — be explained by the common use of those terms in the country, with respect to which more especially the engagement is made (m). Eighthly, — The rule, that the influence and authority of usaffe in the interpretation of private covenants, is such, that customary clauses, though not expressed, are held to be con- tained therein, is in its spirit applicable to International covenants (h). LXXIV. We have now to consider the cases in which doubt arises from the uncertainty of the expression : and first, as to the nature of this uncertainty. It will generally be found to ,arise either from — 1. incompleteness: 2. or ambiguity. LXXV. The uncertainty caused by incompleteness, par- takes of the character of a speech interrupted, before the (A) " Omnia hominum facta ad scopum aliquem atque finem tendunt, unde sibi vel aliis utilitatem quandam expectant."- — Cic. de Fin. 1. i. c. 10. {[) "Quotiea idem sermo duas sententias esprimit, ea potissimum accipietur, quae rei gerendas aptior est." — Dig. L. 17, 67. Compare also Dig. xxiv. i. 52. Dig. xix. ii. 15, 4. Dig. xix. ii. 18. (ot) " Semper in stipulationibus et in ceteris contractibus id sequimur quod actum est. At si non appareat, quid actum est, erit consequens, ut id sequamur, quod in regione, in qua actum est, frequentatur." — Dig. L. 17, 34. (n) " In contractibus tacite veniunt ea quae sunt moris et consuetudinis." — Potiiier (Dvam' Trans.) toI. i. p. 56. " In obscuris inspici solet, quod verisimilius est, aut qnoA plei-umqne fieri sol&t."— Dig. L. 17, 114. INTERPRETATION — INCOMPLETENESS — AMBIGUITY. 101 thought intended to be conveyed by it has been fully uttered (o). The Roman Law furnishes instances of such incompleteness, referring to cases in which the law has required a deed or act of business to be attested by witnesses, but has omitted to specify the number ( p) ; or where a testator has required a sum of money to be paid, but omitted to specify the amount or the coin (§'). LXXVI. The uncertainty arising from ambiguity is more important in its character and more frequent in its occurrence. It is of two kiads, 1. The ambiguity of single expressions {singulorum verborum^ ; 2. The ambiguity which springs from the general construction {comppsitione orationis) of the instrument (r). LXXVII. The ambiguity of single expressions arises when one object only is intended to be designated, but the expression used for the purpose embraces more than one. In civil affairs this happens more frequently with respect to the testaments and contracts of individuals, than with respect to public laws ; but the Treaty or International Covenant, it must be remembered, partakes of the character both of a law and a contract. The Roman Law suggests as instances (o) Savigny, R. if. i. 36. (p) Nov. 107, c. i. In the preface to this novel, it is remarked that the wills of testators were often so imperfectly expressed, that they re- quired Diviners rather than Interpreters: " Eie ToaavTi)v duaii,tiav ib'i^dov, ware fxdvrtwv fiaWov r] epfiTjvkuiv raitra TrpttirdHtTQai," So the English lawyers have a maxim, " Divinatio non interpretatio est quae omnino recedit a litera." (q) " Et si plures fuerint testes adhibiti, sufficit solennem numerum exaudire." . . . . " Sed et si notam postea adjecerit legato vel sua voce vel litteris, vel summam, vel nomen legatarii, quod non seripserat, vel nummorum qualitatem, an recte fecerit ? Et puto etiam qualitatem nummorum posse postea addi ; nam et si adjecta non fuisset, utique pla- ceret conjectionem fieri ejus, quod reliquit, vel ex vicinisscripturis, vel ex consuetudine patrisfamilias vel regionis." — JDic/. xxviii. i. 21. (r) Donellus, Com. de Jiir. Civ, i. p. 43. Savigny, JR. M, i. 36. JDiff. xxviii. 1, 21, 1, 102 INTERNATIONAL LAW. of this kind of ambiguity, testaments in which the slave Stichus is bequeathed as a legacy, Titius is named as legatee, and the farm of Cornelius {s) is the subject of the bequest; but there are several slaves named Stichus, several persons named Titius, several farms designated the farm of Cor- nelius. Or it may happen that the expressions relate to some ab- stract idea, a class of things or persons, and then the am- biguity arises either from the fact, 1. that the expression used has various and different significations, like the ex- pressions puer, familia, potestas, prcBscriptio, in the Roman Law (?). 2. that it has a restricted (stricta) and an extensive {lata) signification, as the words cognatio, pignus, hypotheca, adoptio had in the Roman Law(M). The interpretation applied to these two kinds of ambiguity is usually called by jurists declaratory {declarativa\ LXXVIII. The ambiguity which arises from ih.& general construction (compositione orationis), was not unnoticed by the Roman lawyers, both with respect to laws and to the instruments of private business. The former is, indeed, well illustrated by an instance which occurs in the Digest itself, in which the jurist, after stating various questions requiring the application of a principle of law, ends the paragraph by the words mihi contra videtur: the interpretation depends entirely on the (s) Dig. XXX. 39, 6. (t) Savigny, H. R. i. s. 36. Dig. L, 16, 195. Families appellatio — xarie aceepta est, nam et in res, et in peraonas diducitur, &c. Cod. iii. 39, 5. The word preescriptio is used to signify eitlier a legal pleading, defensive plea, or prescription. lb. 5, 13. Use of the phrase, si iamen extant, may mean if tkei/ are not destroyed, or if they have not been alienated by the husband {extant apud maritu7n). (u) Dig. i. 7, 1, s. 1, " Q,vLoi adoptionis nom.en est (][uidem generale, in duas autem species dividitur," &e. Ih. viii. 2, 23. " Quodsi ita sit cautum, ne himiiiibus officiatur, amUgtta est scriiJtura, utrumne his lurainibus ofRoiatur, quae nimc simt an etiam his, quse postea quoque fuerint." INTERPRETATION — INCOMPLETENESS — AMBIGUITY. 103 question, whether these words relate to the whole of the foregoing paragraph, or to a part of it (x). Cicero (3/) puts a well-known case of ambiguity relating to private instruments, in the direction given by a testator to his heir with respect to a certain weight of silver plate to be given to his (testator's) wife, the bequest being so worded that the collocation of the words {quce volet) left it doubtful whether the selection of the particular plate rested with the heir or the wife. The rules of interpretation, it may be observed, which Cicero suggests are much the same as those which are laid down in this chapter. LXXIX. However different these forms of doubt, aris- ing from the incompleteness or ambiguity of an instrument, may be, they have this feature in common, that they offer an obstacle to the full understanding of the intention of the framers of the Treaty in which they occur. Whether this obstacle has arisen from the want of clear- ness in the thoughts, or ia an imperfect mastery over lan- guage in the provisions of the Treaty, a logical interpreta- tion is equally needed ; and for this purpose the application of the general rules, already laid down, must be first resorted to. LXXX. With respect to difficulties of construction. {x) Big. xliv. 3, 2. (y) " Ex ambiguo autem nascitur controversia, quum, quid senserit scriptor, obscurum est, quod scriptum duas pluresve res significat, ad hunc modum : Paterfamilias, quum filium heredem faceret, vasorum argente- orum centum pondo uxori suas sic legavit : heres meus uxori mece vasorum argenteorum pondo centum, qu) Dig. L. 1, 25. (/) " Die Unabhangigkeit des Staates kommt auch der Person seiner Eeprasentanten zu : dem Regenten.'" — Kliiber, s. 48. Zoiich, p. i. s. V. 1, speaking of " Delicta inter eos quibuscum Pax RIGHTS or SOVEREIGNS. 129 The Sovereign is entitled to International rights belonging to his public character, both while resident at home, and while commorant abroad. At home h.e has a right — 1 . To be addressed by other States according to his proper and accustomed title. 2. To be treated in all communications, unless established usage, or the positive stipulations of Treaty have made a distinction, in all respects on a footing of perfect equality with the rulers of other States. Abroad, the Sovereign de facto is entitled to be treated by all public functionaries of another State, in all public communications, with respect ; and to have his proper titles assigned to him (^). Thus at the conferences holden this year in London respecting the Treaty of Paris of March 30, 1856, the plenipotentiary of the King of Prussia claimed to be received as representative of the Emperor of Germany, a title lately conferred on the King. The claim was admitted by the plenipotentiaries of the other powers (A). If he be personally the subject of a libel on his character, or be defamed, he is entitled to the same redress, in the mu- nicipal Courts of Justice in the country of the libeller, as anj' subject of that country. If he were shut out from such re- dress on the ground of his being a foreigner, or upon any technical ground, he would have just ground of complaint, unless, indeed, satisfaction were extra-judicially afforded to him. est," says, " In his delictis primum est cum status Iseditur vel personis injuria offertur ; " e. g., when the Athenians defiled the statues of Philip. {g) BlunUchli, s. 124 : " Le refus de ces titres est consid^r(5, non sans raison, comme une offense, lorsque le nouveau gouvernement peut envisager qu'il existe seul de fait. Le fait que I'empereur Nicolas de Russie n'avait pas employ^ le tenne habituel de ' frere ' dans une lettre adressee a Napoleon III, a 6t6 profondement senti par ce dernier, qui s'en est cruellement Teng^ ; et cependant il u'y avait point ici une viola- tion du droit ; il y avait tout au plus une atteinte aux usages des cours, car cette lettre reconnaissait express^ment Napoleon comme souverain des FranQais." (h) See Protocols in Pajjers laid before Parliament, 1871. VOL. II. K 130 INTEKNATIONAL LAW. But he has no just ground of complaint if the sentence, after a fair trial, conducted according to the ordinary law of the country, he adverse to him. These cases are rarely such as concern the individual cha- racter of the Sovereign ; they are generally such as concern the collective character of the State, as represented by the Sovereign. The cases of persons proceeded against for libelling the Emperors Paul and Buonaparte, have been already considered as falling under the latter predicament {i\ Plots and conspiracies against a foreign Sovereign ought to be tried and punished by the Courts of the State in amity with that Sovereign in which they are planned (A). The President of a Republic, when he represents the Republic, is entitled to the same rank and honours as a Sovereign both at home and abroad (I). The Sovereign who accepts any office, civil or military, in another State, quoad hoc submits himself to the authority of that State ; e.g. The foreign Sovereigns who served recently in tjj!^ army of the King of Prussia {7n). /.:«dV. The Sovereign who travels through, or sojourns jaemporarily, for whatever cause (?2), in a foreign State, is entitled to an immunity from the ciuil jurisdiction therein. Even the private individual under these circumstances, much more the Sovereign, does not become "civis," or even "incola," but remains " advena " (o). ^ Tt ik,j(ftitw6r'^h^«didle to^enter iatolJre^iscussion whether (i) Vol. i. pp. 447-8. (/c) See Trial of Bernard fo?' attempted assassination of Napoleon III. — Ann. Reg. 1858 ; Laiv Cases, p. 310. (I) Bluntschli, sa. 128, 134. (,m) JJ.131. (m) Bynhershoek, c. iii. suggests four : — 1. Ut res suas ipse agat. 2. Ut litem obortam ipse transactione componat. 3. Ut discat ex rationibus alieni imperii quod ad suum transferat. 4. Solius animi et oblectationis gratia, (o) Mary Queen of Scots, Heffters, 106, n. 4. RIGHTS OF SOVEREIGNS. 131 this immunity fee the resiilt of natural law or of established custom. " ^' It is only in more modern times that this exterritoriality has become, as it may now be considered, a settled rule of International Law. A certain amount of jurisdiction {jp) over the persons com- posing the suite of Sovereigns seems to be a corollary from this proposition. This jurisdiction is limited in most coun- tries to matters of a civil character. Martens, following De Real, qualifies the generality of the proposition by these conditions: — 1. That the Sovereign has not entered the foreign State clandestinely. 2. That he be an actually reigning Sovereign, or recog- nised as such by the foreign State. 3. That he have not submitted himself to the jurisdiction, by entering into the military service of the State, or by some equivalent act of implied submission to its authority. These two last exceptions appear to be well founded ; in their ab- sence the rule " par in parem non habet potestatem " (§') prevails, and one Sovereign remains exempt-/roin the civil jurisd^C^on of another. ^-^ . '' ^^V . With respect to criminal jurisdiction, Jhe foreign 'oovereign, as a general proposition, is exempt from it. Ex- (p) " Man geatattet ihm daselbst der ciml Gerichtbarkeit iiber seine Gefolge."— Xffiier, s. 50. " Fac, prinoipem homioidia et rapinas perpetrare, irruere in quosvia* homines, non suos tantum" &c. — Bynk. c. iii. " En vertu de cette exterritoriality on accords auasi a des monarques strangers lajuridiction [civile au moins] * sur les gens de leur suite ; mais on ne pent leur attribuer le droit d'exercer pendant leur s^jour tous les differens droits de souverainetg qui produiraient leurs effets sur I'^tat ou ils SB trouvent." — Martens, I. 5, s. 172. * The bracketed words are inserted by the editor, Pinheiro Ferreira. (q) Maxim cited by the defenders of Mary Queen of Soots. — Camden's Elimbeth (ed. 1688), b. iii. a.d. 1586, p. 370. See, too, Zouch, De Jud. inter Omtes, p. 2, s. 2, qu. 6. K 2 132 INTERNATIONAL LAW. treme cases may be put which would make the nale inappli- cable. If, indeed, he should abuse the hospitality of the kingdom (r), he may be ordered, Kke a delinquent ambas- sador, to depart from it without delay. If he should contrive or perpetrate any offence against the welfare or laws of the country in which he is a guest, Inter- national Law would warrant the authorities of that country in preventing the commission of the offence, by placing him under necessary restraint, and in subsequently demanding satisfaction for the injury, at the hands of the country of this delinquent representative. We may go a step further and say, that his acts of violence may be met by violence, and that if he perish in consequence of the resistance opposed to his unlawful con- duct, no maxim of International Jurisprudence is violated. CVI. But may the delinquent Sovereign, under any cir- cumstances, be rendered amenable to the criminal jurisdiction of a foreign country ? It is difficult in a treatise on law to answer a question which is founded upon the supposition that the representatives of the majesty of the law are the criminals to be tried by the law. If", however, the question must receive a categorical answer, the answer must be in the negative («). (>-) " Quare ut extremum est in legato ut jubeatur Imperio excedere, sic et in Principe statuerem, si jus hospitii violet. Sed nee sine cautio- nibus ea res transigenda est. Quid si enim more latronis ia vitam, in bona, in pudicitiam cuj usque irruat, nee secus atque bostis capta gi-assetur in urbe. Poterit utique detineri, forte et oooludi, quamvis per turbam malim, quam constitute judicio Si Princeps in alieno Imperio manu rem agat, vel per se, vel per comites, quin nianu repelli possit, non puto dubitandum. Si vero quid machinetur adversus Principem bos- pitem, ej usve Imperium, si aliud commune delictum perpetret, satis, puto, fiet rationi et Juri Gentium, si quod bio Jus Gentium est, si jubeatur flnibus Imperii excedere, nee amplius turbai'e rempublicam nostram." — Byrik. c. iii. (s) Bynkershoeh, referring bimself for a solution of the difficulties growing out of tbis subject to " ratio " and " usus " (as tbe legitimate interpreters of International Ijaw), arrives at tbis conclusion : — " Quin EIGHTS OF SOVEREIGNS. 133 The historical precedents which might appear to counte- nance a contrary opinion are valueless. " Nihil igitur in hoc " argumento proficies rebus similiter a gentibus judicatis," is the just observation of Bynkershoek (^). "- C VII. It is obvious, moreover (m), that this class of cases is happily so rare, and the Instances cited are so exceptional' in their nature, both from their own circumstances and fron^- the periods of history in which they happened, that Inter- national Law cannot rely upon them as exponents of usage in this arduous matter, but must guide the inquirer by the reason of the thing applied to the exigency of each particular occurrence. International Law, like the Civil Law, must pass by, without attempting to bring under exact rules, anomalies which a sudden emergency may create, or to provide remedies beforehand for all imaginable contingencies {x). The excellent sense of Bynkershoek appears in these, among other concluding remarks upon this subject : " Non " adeo frequentes sunt ipsorum, qui imperant, Principum in " alienis Imperils peregrinationes, minus frequentia crimina " vel debita, quae huic disputation! causam praebere possint, " et, quicquid sit, oh persona sanctitatem, eo semper tempera- " mento utimur, ne oh minima quceque magnum exemplum, " statuamus'''' {y). CVIII. The privilege of exterritoriality is extended to the moveable effects which foreign Sovereigns carry with them. The common usage of Europe exempts such effects from fere eo deveniendura est ut negandum videatur, hanc rem Jure Gentium definitam esse, vel definiri posse." — 0. iii. Heffters, B. i. s. 102. (t) Bynkershoek, c. iii. (u) See next chapter, on Embassies. {x) " Jura constitui oportet, ut dixit Theophrastus, in his quae iwi to nXdaTuf accidunt, non quee U Trapa\6yov." — Dig. i. 3, 3. " Til yup liirat f) Jit') ut ait Theophrastus, irapajiaivovaiv u'i j'o/uo9f-ai." — 76.6. (?/) Bynkershoek, c. iii. 134 INTERNATIONAL LAW. the payment of custom duties and the visitation of custom- house officers (z). The immunity is further extended by general comity to goods destined for a foreign Sovereign or his family in their transit through foreign countries ; though this privilege has sometimes, as in the Treaty of Peace between Russia and Saxony in 1745 (a), been the subject of an express stipulation. As to other private property of a foreign Sovereign, both moveable and immoveable, it is, according to very high au- thorities on International Law, liable to arrest, adjudication, and sequestration by the municipal tribunals, and to the taxes and imposts of the local government (6). " Usu gentium invaluit," says Bynkershoek, " ut bona, " quae Princeps in alterius ditione sibi comparavit, sive " hsereditatis, vel quo alio titulo acquisivit, perinde ha- " beantur, ac bona privatorum, nee minus, quam haec, sub- " jiciantur oneribus et tributis." And, speaking of a difference of opinion on the point, he adds his approbation of Hilliger's Commentary on Donellus (c) as follows : " Sub- " ditum vocat (principem) ratione fori, et executionis, quam " judex forte decrevit in rem sibi subjectam, sive mobilem, " sive inmobilem, sive pecuniam, ex quacunque tandem causa " debeatur ; utique, si me sequaris, sic ea interpretor" (d). (z) Bluntschli, s. 138. («) Vide Art. 10. (6) Bynkershoek, who insists strongly upon tlie liability of tlie Sore- reign's private property to arrest, in the same manner as the property of any private person, would allow this exception : " Oavendum autemest, ne res ad injuriam vergat, nee quod inter privatos summum jus est, es iijiquis forte Pragmaticorum Decretis, id summa injuria adPrincipes por- rigamus. Ajunt illi, vel rem minimam ai-resto detentam, sufficere ad subjectionem fori. Largiamur inter privatos, sic enim obtinuit, sed an ita Principis equus, per alterius ditionem ti-ansiens, poterit includi, ut causam prsebeat foro ? Si me auotorem sequaris, non poterit, nee quic- quam magis erit contra prfesumptam, si non testatain, mentem Gentium." —0. iv. (c) mili/jer ad Bomll. 1. xvii. c. xvii. lit. A. (rf) Bynkershoek, c. iv. EI&HTS OF SOVEREIGNS. 135 CIX. Bynkershoek, and Martens (e), who adopts his view, draw no distinction between the moveable and im- moveable private property of the foreign Sovereign ; and, as far as the reason of the thing and the sentences of the Dutch tribunals are concerned, their opinion seems well founded. It must be admitted, however, that the comity at least of various nations has adopted this distinction, and, moreover, that it would be placed, with the sanction of eminent jurists, among the rules of positive law. Not many years before Bynkershoek wrote his treatise, " De Foro Legatorum," the King of Prussia was cited into a Dutch Court as a defendant in the matter of the succession to the Principality of Orange. He appeared and contested the suit (/), and appealed (a.d. 1716) to the Supreme Court of the Senate, before which he seems neither to have prosecuted nor abandoned his appeal, and yet eventually to have been successful in causing the sentence of the Court below to be reversed (a.d. 1719). Probably, in this case the property was of both a moveable and immoveable description. The practice of the English Courts, both of Equity and (e) Mai-tens, 1. v. s. 173, quite to tlie same effect. Bynkershoek overthrowa Huher's opinion to the contrary. — De Jure Civ. 1. .3, 8. 2, c. 2. n. 21, ad tit. De in Jus Vocandi. The cases cited by Uuher and others, Bynkershoek refers to the comity and humanity of princes exercised on particular occasions. Kliiber, e. 40, confines the liability to immoveable property. Heffters seems to be of the same opinion ; and Subejr has been already mentioned. (/) He was much offended. Bynkershoek says (e. iv.), " Clausula edicti, per campanam, ut fit, populo significata," and which, he gravely says, might as well be omitted when the prince has an ambassador who will receive service of the citation. " Citation au son du tambour," Martens says, 1. v. s. 173, n. (a) but no doubt Bynkershoek's version is correct. Orotius, 1. ii. c. xviii. 10 : " Nee metuendum est quod quidem putant, ne si id juris sit nemo inveniatur qui cum legato contrahere velit. Nam et reyibus qui coyi nequcunt non desunt creditores." 136 INTERNATIONAL LAW. 4 Common Law, has been in favour of the privileged exemp- tion of Sovereigns in all matters of private contract. In 1844 the Duke of Brunswick filed a bill against the King of Hanover, and the Master of the Rolls held {g) that his INIajesty was exempt from the jurisdiction of the Courts in this country for any acts done by him as King of Hano- ver, or in his character of sovereign prince ; but that, being a subject of Her ^Majesty Queen Victoria, he was liable to be sued in the Courts of this country in respect of any acts and transactions done by him, or in which he might have been engaged as such suhject; and that in respect of any act done by him out of this realm, or any act as to which it might be doubtful whether it ought to be attributed to the character of sovereign prince or to the character of subject, the same ought to be presumed to be attributable rather to the character of sovereign prince than to the character of subject. And it was also held by the Rolls Court, that in a suit against a sovereign prince who is also a subject, the bill ought, upon the face of it, to show that the subject-matter of it constitutes a case in which a sovereign prince is liable to be sued as a subject. And in a case in the English Court of Queen's Bench (A), it has been held that no English Court has jurisdiction to entertain an action against a foreign Sovereign for anything done, or omitted to be done by him in his public capacity as representative of the nation of which he is the head ; and therefore, in an action entered in the Lord ^Mayor's Court against the Queen of Portugal " as reigning Sovereign and " supreme head of the nation of Portugal," to recover a debt alleged to be due from the Portuguese Government, and in which a foreign attachment had issued, according to the custom of the City of London, the Court made absolute a (g) DiikeofBitmsioickx. King of Hanover. — 6 Bear. 1 : AiErmed 2 H. L. Ca. 1. (A) De Haher y. Qiwen of Portuyal. Wadsworth v. Queen of'Sjmin, 18ol, 17 Q. B., 171. EIGHTS OF SOVEREIGNS. 137 rule for a prohibition to restrain proceedings in the action and in the attachment. And the same principle was applied where a case was entered in the Lord Mayor's Court against the Queen of Spain, not expressly as reigning Sovereign and head of the Spanish nation, but where it appeared by affidavit that the plaintiff's sole cause of action arose upon a Spanish Government bond, purporting to have been issued under a decree of the Cortes sanctioned by the E-egent of Spain, in the name of the Queen, then a minor. In 1828, the French Court, the Tribunal Premiere Instance (Ire Chambre), upheld the principles which have been stated, in two instances ; one, an action brought by a French firm against the Spanish Government {i) ; another, in which an action was brought by a French company against the Re- public of Haiti (A). In both cases judgment was given upon the same principle of International Law, namely, the independence of Foreign Sovereigns. In the first case, the President Moreau delivered the following judgment : — " Attendu que le droit de juridiction est une emanation " de la souverainete ; " Attendu que I'art. 14 du Code civil ne pent etre appli- " que a un souverain etranger, d'abord parce qu'il ne dispose " que pour les obligations contractees envers un Fran9ais " par un individu etranger, et encore parce qu'on ne pourrait " I'etendre aux souverains etrangers sans porter atteinte au " droit qu'a tout gouvernement independant d'etre seul juge " de ses actes ; " Attendu, en fait, que I'opposition formee par la maison " Balguerie entre les mains d'Aguado, a pour cause I'exe- " cution d'un traite passe entre S.M. catholique et cette (»■) Affaire de la maison Balguerie, de Bordeaux, contre le Qouverne- ment espagnol {voir la Gazette des Tribunaux des 19 et 26 avril). (h) Affaire de MM. Ternatix, Oandolphe, ct Compagnie, contre' la Republiqice d' Haiti (voir la Gazette des Tribunaux du 26 avril). 138 INTERNATIONAL LAW. " maison pour rafiretement d'un certain uombre de navires " destines a transporter les troupes du gouvernement es- " pagnol; " Qu'un pareil traite est evidemment un acte d'admini- " stration publique et ne peut, sous aucun rapport, etre con- " sidere comma un contrat prive ; " Attendu, d'un autre cote, que les deniers, sur lesquels " I'opposition a ete formee, sont des deniers publics destines " au paiement de I'emprunt royal espagnol, et qui ne pour- " raient etre saisis sans entraver la marche de ce gouverne- " ment ; " Qu'admettre une personne privee a saisir en France les " fonds d'un gouvernement etranger, serait violer les prin- " cipes sacres du droit des nations, et s'exposer ainsi a des " represailles funestes ; " Attendu, enfin, queles jugemens des Tribunaux fran§ais " etant sans autorite hors du royaume, le gouvernement es- " pagnol ne pourrait pas etre force de s'y soumettre, et par " consequent de reconnaitre la validite du paiement qui " serait fait par Aguado ; " D'oii il suit que le Tribunal est incompetent. " Fait main-levee de I'opposition, etc." (?). On the 16th April, 1847, one of the French Courts, the Tribunal Civil de la Seine, pronounced a very important judgment on the same subject. A M. Solon brought an action against Mehemet-Ali, Viceroy of Egypt, for 100,000 francs, alleged to be due to him for his services in founding and superintending a school at Cairo. Mehemet-AK was very ably defended by ]M. Odilon Barrot, principally upon the ground that a foreign Govern- ment could not, according to the principles of International Law, be sued in an action of this description. The Tribunal (Z) " M. le President Jariy a pi'ononc^ dans I'aftaire Ternaua- Gandolphe uu jugement scmblable et motive aussi sur I'ind^pendance des souveraine- t6s:'—G«) Heffters, s. 67. See the formal instrument of abdication of the Empire of Brazil by Bon Pedro, De Garden, TraiU de Dipl. iii. 213-18. (x) De Martens, Caitses c6l. ii. (y) De Foro Leg. c. 3. (») Mr. Hallam says, " I should be rather surprised to hear anyone RIGHTS OF SOVEREIGNS. 143 Mary Queen of Scots, at the time of her pretended trial in England, had been de facto twenty years dispossessed of her crown ; her son had been acknowledged as King of Scotland by all Europe ; she was styled, in her indictment, " Mary, daughter and heir of James V., late King of Scots ; " otherwise called Mary Queen of Scots, Dowager of '■'^ France : " and if her trial and execution were only im- pugnable upon the ground of the violation of her rights as a Sovereign, it would be difficult to pronounce these acts a violation of strict International Law. The atrocious guilt of her murder rests upon other grounds, chiefly no doubt upon her forcible detention in England, "in violation" (as Mr. Hallam admits) " of all natural, public, and municipal law." CXIII (A). It is important, however, to remark, that if a foreign Sovereign become a suitor or a plaintiff in the Courts of another country, he brings with him no privileges which can valry the practice or displace the law applying to other suitors in those Courts ; and, therefore, both the Court of Chancery and the House of Lords decided that the King of Spain, though suing as a sovereign prince, and in his political capacity, in an English Court of Equity, was under an obligation, to answer upon oath to a cross-bill filed against him by the defendants to his suit (a) ; and the same doctrine had before been laid down with reference to a Re- publican Government, in the case of the Columbian Go- vernment V. Rothschild, in which the plaintiffs were de- scribed as the " Columbian Government," and their counsel being desired to show who they were, and not being able to do so, the demurrer to the bill was allowed, on the principle assert tliat the Parliament of Paris was incompetent to try Christina for the murder of Monaldeschi ' {Constit. Hist. chap, iii.); though he offers a stouter defence for Elizabeth than almost any other historian. See Strype's Annals of the Church, vol. iii. part 1. book ii. pp. 528-537, as to the case of Maiy Queen of Scots; the opinion of the Common Lawyers as to the title ; the Civilians as to the Law of Nations. (a) King of Spain v. liuUett and Widder, 1 Clarke 8( Finnelly, 348 (a.d. 1833). S. u. in the Court below, 1 Dow. ^ Clarh; 160. 144 INTERNATIONAL LAW. that the plaintiff must describe himself, so that the defendant might come against him by a bill or a cross-bill (b). And in the case of Rothschild v. Queeti of Portugal, the Court of Exchequer held that Her Most Faithful Majesty, being a voluntary suitor in an English Court of Law, became subject, as to all matters connected with that suit, to the jurisdiction of the Court of Equity ; and was, therefore, compellable to answer to a bill filed against her by persons who were the defendants in an action which she had brought against them, but the plaintiffs in the bill filed against her in the Court of Exchequer (c). Upon the same principle in Prioleau v. United States and Andrew Johnson {d), V. C. Wood decided that the United States of America, suing in the Courts of this country, and thereby submitting themselves to the jurisdiction, stand in the same position as a foreign Sovereign, and can only obtain relief subject to the control of the Court in which they sue, and pursuant to its rules of practice, according to which every person sued in this Court, whether by an individual, by a foreign Sovereign, or by a corporate body, is entitled to discovery upon oath touching the matters upon which he is sued, and to file a cross bill for the purpose of obtaining such discovery. Proceedings were accordingly stayed in a suit by the United States of America, suing in their corjjorate capacity, until an answer should have been put in to the cross bill of the defendant. And in the United States of America v. Wagner (e) the Court of Appeal in Chancery held that, while a foreign sovereign State adopting the republican form of government, and recognised by the Government of Her Majesty, can sue in the Courts of Her ]\Iajesty in its own name so recognised, and such a State is not bound to sue in (6) 1 -Simon's Rep. 94 (a.d. 1826). (c) 3 Ymmg 8f CoUyerh Rep. 594 (1839). {d) 2 L. R. Eq. Rep. 659 (1866). {e) 2 L. R. Oh. App. 583 (1867), EIGHTS OF SOVEREIGNS. 145 the name of any officer of the Government, or to join as co- plaintiff any such officer on whom process may he served, and who may he called upon to give discovery upon a cross bill; nevertheless, the Court may stay proceedings in the original suit, until the means of discovery are secured in the cross suit. In the case of the Emperor of Brazil v. Robinson and others, the Court of Queen's Bench decided that the Emperor, having engaged in a commercial transac- tion, and bringing an action thereupon in the Courts of this country, and being resident out of the jurisdiction, was not exempted from that necessity of finding security for costs to which any other person bringing such an action would be subject [f) ; and they held this decision to be consistent with the principle of a former decision in which Lord Ellenborough had decided that such a privilege of exemption did attach to an ambassador, who was in this country merely in his political capacity, and concerning whom there was no reason to suppose that he was desirous of leaving the country {g), or going out of the jurisdiction. The two following cases are important. They relate to the question of the civil position as plaintiffs of an actual and of a restored legitimate Government before the tribunals of a foreign State. In the case of iAe Emperor of Austria v. Day and Kossuth (A), Lord Campbell held that the actual reigning Sovereign of a foreign State in amity with Great Britain is entitled to sue in the Court of Chancery, and to obtain an injunction to prevent the issuing of monetary notes manufactured in England, purporting to be notes of that foreign State, but having no sanction from its Govern- ment, if the Court is satisfied that some substantial injury will thereby accrue to the property of such foreign State, (/) Emperor of Brazil v. Robmson and others, 5 DoivKnt/'s Rep. of Practice Cases, 522 (a.b. 1837). (ff) The Duke de Montellano v. Chrisfin, 5 Maule ^- Selwyn's Rep. 503 (a.d. 1816). (70 2 Giff. 628 (1861). VOL. II. I' H6 INTERNATIONAL hAW. and to that of the plaintiffs subjects, whom he has a right to represent. Accordingly, monetary notes having been manufactured in this country, purporting to be sanctioned by the State of Hungary, and signed by K., a native of Hungary, resident in England, " in the name of the nation," but which were unauthorised by the existing Government — an injunction was granted to restrain their issue, and they were ordered to be delivered up to be cancelled at the suit of the Emperor of Austria, as King de facto of Hungary. In the case of the United States of America v. McRae (z). V. C. James held that, upon the suppression of a rebellion, the restored legitimate Government is entitled, as of right, to all moneys, goods, and treasure which were public pro- perty of the Government at the time of the outbreak, such right being in no way affected by the wrongful seizure of the property by the usurping Government. But with respect to property which has been voluntarily contributed to, or acquired by, the insurrectionary Govern- ment in the exercise of its usui-ped authority, and has been impressed in its hands with the character of public property, the legitimate Government is not, on its restoration, entitled by title paramount, but as successor only (and to that extent recognising the authority) of the displaced usurping Govern- ment ; and in seeking to recover such property from an agent of the displaced Government can only do so to the same extent, and subject to the same rights and obligations, as if that Government had not been displaced and was itself proceeding against the agent. Therefore, a bill by the United States Government, after the suppression of the rebellion, against an agent of the late Confederate Government, for an account of his dealings in respect of the Confederate loan, which he was employed to raise in this country, was dismissed with costs, in the absence of proof that any property to which the plaintiffs were 0) I., ri. 8 Eq. Hep. m (ISfiO). RIGHTS OF SOVEREIGNS. 147 entitled in their own right, as distinguished from their right as successors of the Confederate Government, ever reached the hands of the defendant, and on the plaintiffs declining to have the account taken on the same footing as if taken between the Confederate Government and the defendant as the agent of such Government, and to pay what, on the footing of such account, might be found due from them. 1 2 148 INTEKNATIONAL LAW. CHAPTER IT. EMBASSY — ANTIQUITY AND UNIVERSALITY OF ITS EIGHTS. CXIV. We now approach the subject of Embassies (a), a part of International Jurisprudence which has taken deep root in the practice of nations, and is therefore capable of precise treatment and clear exposition. The principal rights and duties incident to Embassies have been recognised by all communities at all removed from the condition of savages. (a) The principal authorities relied on for this suhject are — Alba-ieus Gentilis, De Legationibus, libri tres. The first good work on the suhject. Grotiits, 1. ii. c. xviii. De Legationum Jure. Zouch, De Judicio inter Gentes, pars i. iv. : " De qusestionihus debiti inter eos quihuscum par est — solutio qusestionis veteris et novse, sive de legati delinqueutis judice competente dissertatio." — Oxon : 1657. Wicquefoi-t, De Legato, translated by Barbeyrac, 1681. L'Ambassadeiir et ses Fonctions, 1746, last ed. Bynherslioeh, De JPoro competente Legatorum. This treatise, though not without some characteristic defects of the author, is by far the beat that has been written on the subject. Qu. Juiis Piib. 1. ii. c. iii.-ix. Vattel, I. iv. ch. 5, 6, 7, 8, 0. Martens, 1. vii. 6S. 185-250. Xliiber, ss. 166-230, c. iii. Ileffters, B. iii. ss. 193-230. Miruss, Das Duropaische Gesandtschaftsrecht, Leipzig, 1847. IVard's Law of Nations, vol. ii. c. xvii. niieaton, Hist., pp. 48, 51, 95, 232-256, 496. FcbUx, Droit Int. Pr., 1. ii. t. ii. ch. ii. s. 4. Wildman, I. c. 3. Blwttschli, ss. 159-e-l3. EMBASSY — WHO MAY SEND. 149 The whole subject may be conveniently discussed under the following general heads ; 1. Who may send and receive Ambassadors? 2. Is their reception obligatory ? 3. Their Right of Inviolability. 4. Their Privileges of Exterritoriality. 5. May the Ambassador by any, and what, misconduct forfeit his rights and j)rivileges ? fi. When the functions of the Ambassador legally cease. CXV. Every nation, so far sui juris as to be capable of negotiating in its own name with another nation, has the right of sending an Embassy {droit actif — actives Gesandt- scliaftsrechi). CXVI. Therefore, not only independent States have this, among other jura majestatis, but dependent States, who have not an entire Sovereignty, may possess this right, if the nature of their connexion with the protecting State allows them the liberty of conducting their foreign relations with other States (b). By the sixteenth article of the Treaty of Kainardgi (c), concluded in 1774 between Turkey and Russia, the Hos- podars of Moldavia and Wallachia, placed under the protec- (6) Bynkershoek, Q. J. P., 1. ii. c. iii, : '' Qui recte legates mittunt." Martens, s. 187. / 'attel, 1. iv. c. V. Ilefters, s. 200. Kliiber, s. 175. " El derecho de emtajada es una regalia que, como todaa las otras, reside originalmente en la nacion. La ejercen ipso jvre los depositaries de la soberania plena, y en virtud de su autoridad constitucional los monarcaa que concurren con las asambleas de nobles y diputados del pueblo a la formacion de las leyes, y aun los gefes ejecutivos de las repviblicas, sea por si solos 6 con intervenoion de una parte 6 de todo el cuerpo legislati vo. En los interregnos el ejercicio de este derecho recae naturalmente en el gobierao provisional 6 regencia, cuyos agentes diplomaticos gozan de iguales facultades y prerogativas que los del soberano ordinario." — Pando, tit. cuarto coxxix. (e) Kliiber, s. 175, n. 6. 150 INTERNATIONAL LAW. tion of Russia, are each entitled to be represented by a charge d'affaires, being a member of the Greek Church, at Constantinople. According to Vattel, a State which is under protection, or which has contracted an unequal alliance, has retained, if it have not expressly renounced, the right of Embassy {d). The Princes and the States of the German Empire, at the time Vattel wrote, although under feudal subordination to the Emperor {quoique (Us) relevent de VEmpereur et de VEmpire), preserved, in spite of his opposition, their indivi- dual right of Embassy, and since the peace of Westphalia have resembled a republic of Sovereigns (e). CXVII. There is no doubt that confederated States are collectively entitled to the right of Embassy ; the question as to the individual right of each member of the Confederation is one of more difficulty. It may be argued (/) that the sovereignty of each State is not impaired because it has entered into certain volun- tary engagements with its neighbours, any more than the independence of an individual is forfeited by his having entered into a voluntary engagement with another individual. But this must, after all, depend, both in the case of the State and of the individual, very much upon the character and nature of the engagements, however voluntarily con- tracted. The question can only be answered by reference to the terms and conditions of the union by which the different States are bound together {g). CXVIII. In the ancient Republic of the Seven United Provinces, the individual States were deprived of the right of Embassy, which was lodged in the assembly of the States- General. Holland and Zealand, however, had the singular (d) L. iv. c. V. s. 58. (e) L. iv. c. V. 859. if) Vattel, 1. i. c. i. s. 10. (g) Mciiin, Ministre ^mhlic, s. 2, EMBASSY — WHO MAY SEND. 151 privilege of presenting to the States the Ambassadors designated for England and France. Holland chose one, and Zealand the other. Holland had also the right of sending a subject of its province, with the embassies from the other States, which were composed of two or three persons. CXIX. The United States of North America, in their first Federal Act, gave the Right of Embassy to each State to be exercised with the consent of Congress. The Presi- dent, however, exercised the executive power, nominated diplomatic agents, and concluded treaties. It is clear that foreign nations were exposed to great uncertainty in their relations with such a confederacy ; and that the double authority was inconsistent with the object of the Union. In their second Federal Act this defect was in a great degree remedied. This Act forbids any State to enter into any treaty, alliance, confederation, compact, or agreement with any other State of the Union, or with a foreign State, without the consent of Congress. Therefore, Mr. Wheaton observes, " The original power " of sending and receiving public ministers is essentially " modified, if it be not entirely taken away, by this prohibi- " tiou " (k). CXX. In both these instances of the Seven United Provinces and of the United States, there was one common centre of authority, in the hands of which the individual members of the Union had lodged the supreme executive power. It followed, therefore, that in that power was the Eight of Embassy. CXXI. In the Swiss Confederation, however, the case was different. Each Canton preserved its right of sove- reignty. They had, indeed, annual diets, but these diets constituted no centre of authority. There was no one body or council which represented the Confederacy in its foreign relations. Each of the Cantons, therefore, contracted alli- ances as they pleased. The Roman Catholic Cantons were (h) Wheaton, vol. ii.p. 261. 152 INTEUNATIONAL LAW. the only allies of France, and at the death of Louis XV., the Cantons of Berne and Zurich had contracted a par- ticular alliance with each other. " Aussi," observes Merlin, " n'a-t-on jamais doute que chacun d'eux ne jouit du droit " d'ambassade '' (i). CXXIT. According to Vattel (k), there may be towns which are in subjection to the general authority of the country in which they are situated, or to some other au- thority (jollies svjettes — unter landesherrlicher Gewalt), and which, nevertheless, enjoy the right of embassy; and he instances Neufchatel, and Brienne in Switzerland, which had the droit de hanniere {jus armorum), and as a consequence, the right of legation ; but Merlin, with justice, combats this position, and says that it betrays that Vattel was a native of Neufchatel, and wished to exalt the place of his birth, and Merlin adds, that a people cannot be sovereign and subject at the same time ; and that though Neufchatel had great civil privileges, and had been reckoned among the allies of the Swiss Cantons, it had no right of legation according to theory, and that according to practice it had, under the ancien regime, acted through the Ambassador of Prussia, who by the ninth article of the Treaty of Utrecht had been recognised as " souverain seigneur de la principaute de Neufchatel et " Valengin " (Z). CXXIII. The question is often discussed in treatises, whether an usurper has the Eight of Embassy. The answer must depend upon two considerations : — 1. Whether the country of the usurper has acknowledged him as the de facto sovereign ; 2. Whether the foreign country has recognised him as such. France, under Mazarin, for instance, admitted, without hesitation, the ambassadors of Cromwell, and rejected those of Charles II. at ihe Congress of the Pyrenees. England, in 1G41, not long before the occasion just men- (i) Mei-lin, Ministre jmhlic, s. 2, v. {k) Vattel, 1. iv. c. v. s. 00 : " Ues villes qui out le droit de banniere." (?) Merlin, Ministre jiifhlk; a. 2, ix. EMBASSY WHO MAY SEND. 153 tioned, admitted the Ambassador of John IV. King of Portugal, though she had previously recognised only the Spanish Ambassador for Portugal {m). The consideration of this point has been in great measure anticipated in the chapter on Recognition (w). CXXLY. A Sovereign who has abdicated his throne has no title, de facto or dejure, to the Right of Embassy. Upon this question all publicists refer to the celebrated case of Leslie, Bishop of Ross, ambassador of Mary Queen of Scots. CXXV. We have already considered the legal status in England of that unfortunate Princess. The question with respect to the rights of her ambassador in the same country arose in the following manner. Mary Queen of Scots was allowed, after her unwarrant- able detention as a captive in England, to send an ambassador to plead her cause before the commissioners appointed by Elizabeth to try her. She sent Leslie, Bishop of Ross, in 1567. During the period of his embassy, he was twice committed to prison upon the charge of endeavouring to effect a conspiracy in favour of Mary against Elizabeth (o). It appears from the State Papers of Lord Burleigh, that the English Government propounded to certain civihans the following questions (p). 1. Whether an Ambassador, procuring an insurrection or rebellion in the Prince's country towards whom he is Am- bassador, is to enjoy the privilege of an Ambassador ? 2. Whether he may not. Jure Gentium et Civili Roman- oruvi, be punished as an enemy, traitor, or conspirator against that Prince, notwithstanding he be an Ambassador? To these two questions they answered: "Touching these " two questions, we are of opinion, that an Ambassador pro- (jii) Merlin, Ministre public, Vi.Vii. {n) Icicle ante, ch. iv. (o) Camden's Hist. 113. Ward, vol. i. p. 486. (p) Biaieif/Jis State Papers by Murden, 18. Ward, vol. i. p. 487, &c. 154 INTERNATIONAL LAAV. " curing an insurrection or rebellion in the Prince's country " towards whom he is Ambassador, ought not, Jure Gentium " et Civili Romanorum, to enjoy the privileges otherwise " due to an Ambassador ; but that he may, notwithstanding, " be punished for the same." 3. Whether, if the Prince be deposed by the common authority of the Realm, and another elected and invested of that crown, the Solicitor or doer of his causes, and for his aid (although the other Prince do suffer such one to be in his Realm) is to be accounted an Ambassador, or to enjoy the privilege of an Ambassador ? To this they answered: "We do think that the Solicitor " of a Prince lawfully deposed, and another being invested " in his place, cannot have the privilege of an Ambassador ; " for that none but Princes, and such other as have sove- " reign ty, may have Ambassadors." 4. Whether a Prince, coming into another Realm, and remaining there under custody and guard, ought, or may have there his Solicitor of his causes; and if he have, whether he is to be counted an Ambassador ? To this they answered : " We do think that a Prince " coming into another Prince's Realm, and being there " under guard and custody, and remaining still a Prince, " may have a Solicitor there ; but whether he is to be " accounted an Ambassador, that dependeth on the nature " of his commission." 5. Whether, if such a Solicitor be so appointed by a Prince so flying, or coming into another Prince's Realm — if the Prince in whose Realm the Prince so in guard, and his So- licitor is, shall denounce, or cause to be denounced, to such a Solicitor or to such a Prince under custody, that his said Solicitor shall hereafter be taken for no Ambassador — whether then such Solicitor or Agent can justly claim the privilege of Ambassador ? To this they answered : " We do think that the Prince " to whom any person is sent in message of ambassador, may " for causes forbid him to enter into his lands, or when he " hath received him, command him to depart ; yet so long as EMBASSY WHO MAY SEND. 155 " he doth remain in the Realm, and not exceed the bounds of " an Ambassador, he may claim his privilege as Ambassador, " or Solicitor, according to the quality of his commission." This opinion of the English civilians is again referred to in this chapter, when the general subject of the inviolabihty of the Ambassador is discussed. In the passage which has just been cited, the proposition of International Law appears to be correctly stated ; but this, it will be seen, cannot be predicated of the other portions of this celebrated opinion {q). CXXVI. During the minority of the Sovereign, the Eight of Embassy is lodged in the person or persons com- posing the Regency, or in the minor himself, according to the constitutional law of the country of the Sovereign (r). In France, during the Regency of the Duke of Orleans, the Cardinal Dubois negotiated the Triple Alliance of La Haye in 1717, by virtue of Credentials, Full Powers, and Instructions, which were given in the name of the King, then a minor. In England, during the periods in which George III. was incapacitated by mental derangement for the transaction of affairs, the right of sending embassies was vested in the Prince of Wales. The Republic of Poland, during the vacancy of the elective throne, exercised the Right of Embassy. CXXYII. The maxim, delegatus non potest delegare, would apply, generally speaking, to cases where the ministers of a State attempted to delegate the Rights of Embassy. If, however, the minister were armed, either by his original (j) See Preface to vol. i. of this Work, p. Ixvii, et \ide post. ch. 5. (r) Merlin, Ministre public, s. 2, x. Kliiber, a. 176, n. e. Vattel, 1. iv. c. iv. s. 42. Ministres de la Nation ou des Regents dans V Interr'egne : " Le droit d'ambassade, ainsi que tous les autres droits de la souverainet^, reside originairement dans la nation conime dans son sujet principal et primitif. Dans I'interregne, I'exeroice de ce droit retombe a la nation, ou il est d^volu a ceux a qui les loia ont commis la r^gence de I'^tat. 11a peuvent envoyer des ministres, tout comme le souverain avoit accoutumti de faire, et ces ministres ont les memes droits qu'avoient ceux du souverain." 156 INTERNATIONAL LAW. commission or by powers subsequently conferred, to appoint a delegate minister, it would be clearly competent to him to exercise the authority. After the death of Gustavus Adolphus at Lutzen, in 1632, the Senate at Stockholm devolved the whole Govern- ment upon the Chancellor Oxenstiern. He nominated the illustrious Grotius as ambassador to France, giving him credentials in his (the Chancellor's) own name. Richelieu, who then governed France under Louis XIII., refused to receive Grotius, on the ground that he ought to have received his commission from the Senate. The Chancellor, however, demonstrated to Kichelieu, that on this principle of rejection certain treaties entered into between France and Sweden would be affected ; whereupon Grotius was received, but, as Wicquefort observes, as am- bassador of Sweden, and not of the Chancellor who had given him his commission, and in -sTi-tue of the procuration of the Senate (s). Some time afterwards the Spanish ambassador nominated certain public ministers to carry on the negotiations of the Treaty of Munster. In their commission, he recited that, by the full power granted to him by the King of Spain, he (the ambassador) was authorised to substitute {subrogare) other persons for the purpose of assisting him in the execution of his office. Wicquefort remarks, that these ministers were received as the plenipotentiaries of the Crown of Spain, and not as the delegates of the ambassador (t). C XXVIII. The Viceroy of a province, especially of a distant province, has always been held, ex 7iecessitate rei, to possess the Eight of Embassy (m). (s) Merlin, Ministre ptihlic, s. 2. x. Wicquefort, 1. i. s. 3. (0 Merlin, lb. IVicqiKfort, 16. (m) Merlin, Ibid. Vmioiis instances ai'e cited by hira, viz., in 1524 1502, 1577, 1588, to which, no doubt, many othei's might be added. T'atfcl, 1. iv. c. V. c?. 01, ascribes the jw lei/atimu's ■n-ithout besitation EMBASSY V.'HO MAY SEND. 157 During the period when Spain governed Naples by a Viceroy, Milan by a Governor, and Belgium by a Governor- General, the right to confer upon others the jus legationis was frequently exercised by these high delegates of their Sove- reign, and generally without controversy {x) ; though in 1646 the French ambassador in Switzerland succeeded in persuading the Cantons to refuse an audience at their General Assembly to the ambassador of the Governor of Milan, on the ground that this ambassador had no credentials from the Crown of Spain (y). During the time that Belgium was in the possession of Austria, foreign diplomatic agents were sent to reside at Brussels, the seat of the Governor-General's authority. CXXIX. The same necessity and reasons have very generally caused the power of imparting i\\Q jus legationis to be granted to the European Governors of American or Asiatic dependencies. The British Governor-General of India, the Spanish Governor of the Philippines, and the Dutch Governor of Java, are examples which readily occur. The great Companies of European States, such as the Dutch, the French, and the British East Indian Companies, have often possessed this power {_z). But this authority cannot be presumed ; it must be conferred by the special and express grant of their respective Governments (a). to viceroys : — " Agissant en cela au noni et par I'autorit^ du souverain qu'ils repr^sentent, et dont ils exercent les droits ; " and he expressly affirms that the Viceroys of Naples, and the Governors of Milan and the Pays-Bas, had this power. {x) Queen Elizaheth in 1569, having possessed herself of money sent from Spain to the Duke of Alva, refused to treat with the Duke's legate, " utpote misso a non principe." But Bynkershoek truly says, "satis eo ipsa Regina ostendit frivola se exceptione uti, quam suum cuique reddere maluisse." — Q. J. P. 1. ii. c. iii. Zouch t. ii. 4 s. 7 : "An qui imperium summum non habent legates niittere possunt." iy) Merlin, lb. [z) Bynkershoek, Q. J- P- 1- ii- c iii- («) Merlin, lb. 158 INTERNATIONAL LAAV. CXXX. International Law, strictly speaking, is not con- cerned with cases of rebellion. There is no doubt that rebel- lious subjects are not entitled to the jus legationis in their com- munications with their Sovereign ; the foundation of the right is wanting. Nevertheless, when rebellion has grown, from the numbers who partake in it, the duration of it, the severity of the struggle, and other causes, into the terrible magnitude of a civil war, the emissaries of both parties (6) have been considered entitled to the privilege of ambassadors so far as their personal safety is concerned (c). " In hoc eventu," iV) Bynk. 1. ii. c. iii. would allow the Jiis legatorum to tlie Sovereign only, at leaat until lie be overthrown, and he cites with approbation two instances from Tacitus: — 1. In which Cerealis sent the legate of the rebellious Batavi to Rome to be punished (1. iv. Ibid. c. 75) ; 2. In which Vitellius and the senate sent ambassadors to Vespasian, who, he says, coming from those who were at that time sui juris, were entitled to the " sacrum legatorum jus ; " whereas Vespasian's am- bassadors would have been rehellorum nuncii. A third instance is that of Louis of Bavaria, in 1327, who seized the legates of the Pisans, "qui ipsum in urbem suam recipere detrectabant." Bynkershoek's own opinion is thus expressed: "Ut legatio pleno jure utrimque consistat, status utrimque liber desideratur, qui si ab una duntaxat parte liber sit, ab ea missi tantum jure legatorum utuutur, ab alia missi ad ex- teflium principem, habentur pro nunciis, ad suum, pro subditis, sic ut in eos princeps exercere possit id jus, quod in reliquos subditos exercet. Scissa in factiones republica, interesse putem, penes quam partem stat rei agendi potestas, si penes unam ut ante stetit nee aUorum ad res agendas desideretur consensus, etiam hsec sola recte legatos mittit, et his competit quicquid veris legatis." (c) Merlin, lb. xii. Bynhershoek, however, observes (Q. J. P. 1. ii. c. iii.) : " Sed non seque constant, si subditi forte vel rebelles ad principes suos legates mittant." — He instances the ambassadors from the Netherlands in 1566, put to death by Philip II., and admits that this act was specified in 1581 as one of those which caused the final rejection of the Spanish dominion. Wicque- fort, however, he says, is right (1. i. s. 2.) in saying that Philip was justi- fied./M?-e stricto in this deed ; that the reason which founds the security of ambassadors is that, being the subjects of another Sovereign whose interests they are bound to represent, they do not by embassy lose their character and become subjects of the Sovereign to whom they are sent ; and that this reason was wanting in the case of the rebels, who were, and remained, subjects of Philip ; he admits, however, that the leyatnnimjiis might have been, and in IHOn waf:. granted to them. EMBASSY — WHO MAY SEND. 159 Grotius says, " Gens una pro tempore quasi duse Gentes " habetur" (d). Peace and order, under these circumstances, can only be restored, the shedding of blood can only be stayed, through the medium of negotiation : negotiation must be carried on through negotiators, and negotiators cannot act unless their personal security be guaranteed (e). So far as the State herself, in which the rebellion has broken out, is concerned, it must always be a question of circumstances, and incapable of definition beforehand, when the citizen is to be considered as entitled to the privilege of an enemy rather than the punishment of a rebel (/). When, in the early history of Home, a Roman colony sent ambassadors to the Senate, they were warned to depart im- mediately, "ne nihil eos legationis jus, externa, noncivicom- " paratum, tegeret " (jr). And on this ground Cicero argued that the Legati of Antony should not be received (A). But we read in the Conimentaries of Cassar that during the {d) Grot. 1. ii. b. 18, 2. " Es costumbre conceder libre transito a los ministros que dos Estados envian uno a otro, y pasan por el territorio de un tercero. Si se rehiisa a los de una potenoia enemiga 6 neutral en tiempo de guerra, 63 necesario justificar esta conducta con buenas razones ; y aun seria mas necesario hacerlo asi en tiempo de paz, cuando recelos vebementes de tramas secre- tas contra la seguridad del Estado aconsejasen la aventurada providencia de negar el transito a los agentes diplomaticos de una potencia extrangera." — Pando, tit cuarto ccxxix. (e) "Verum habetur, justis duntaxat hostibus esse jus legationis, et quod ab aliis aliquando legati admissi sunt, id permissum non in eorum favorem sed boni communis causa cum alias omnia reconciliationis media tollerentur, multo magis si hujusmodi legatis fides data est ea omnino violanda non est." — Zouch, p; 2, s. 9, q. 16. De Jur. Fee. (f) Merlin mentions two instances : — 1. The negotiation of the Go- vernment of France through the mediation of England with the Refor- mers of Languedoc in 1704 : a Treaty was signed between the Crown and the rebels, differing only from other treaties in being signed, " tres-humble requete des R^form(5s du Languedoc au Roi." 2. The negotiation with the Vendeans and Chouans. (.9) Liv. 1, vi. c. 17. (X) Phil. v. c. 8. 160 INTEUNATIONAI/ LAW. great civil war of Rome, some such considerations as have been mentioned above had caused the reception by Pompey of emissaries, even from the fugitives and robbers of the Pyrenees ; and by Caesar's directions, his officers endeavoured, though in vain, to open a negotiation with Pompey, ex- claiming, " Liceret ne civibus ad cives de pace legates " mittere ? quod etiam fugitivis ab saltu Pyrenajo prssdoni- " busque licuisset, prajsertim ut id agerent, ne cives cum " civibus armis decertarent " (?). The great revolutions of the world, such as the Revolt of the Netherlands, and of the British Provinces in North America {k), could only have been prevented from producing a state of perpetual warfare throughout the greater part of the globe, by a partial application of the principle of Inter- national Law to the divided members of one and the same State. The importance and necessity of these principles were exemplified in the case of the Trent (?) during the recent Civil War in America. (i) CcBSar, De Hello Civili, 1. iii. c. xix.; see too, c. xvii. (h) See some admirable remarks by Mr. Burke, " On the strange in- congruities which must ever perplex those -who confound the unbappi- ness of civil dissension vrith the crime of treason." He adds : " Wherever a rebellion reall}- and truly exists — which is as easily known in fact as it is difficult to define in words — Government has not entered into st«e'i mili- tary conventions (e.g., as they bad entered into with the revolted colonies in North America) ; but has ever declined all intermediate treaty which should put rebels in possession of the Law of Nations with regard to war,' &o. {Letter to (lie Sheriffs of Bristol). See, too, his remarks on the shameful violation of the Treaty of Limerick, ratified by King William IIL, under the faith of which Limerick and other Irish garrisons were surrendered in the war of the Irish Revolution or Rebellion. — Tracts on the Popery Laws, ch. iii. pt. 2. (/) Among the publications in which this case was discussed will be found : — 1. Der Trent-Fall. (Dr. Marquardsen, Erlangen, 1862, Kap. xiii; gives the despatches of foreign ministers.) 2. Ann. Reg. 1861. 3. Dana's note to Wheaton, 644. 4. Notes on some Questions suggested by the case of the Trent. — .V. Bernard, 1862. 5. Case of the Seizure of the Southern Envoys, by the author of the.^e commentaries. — JRidgurii/, 18G1, EMBASSY WHO MAT SEND. — THE TRENT. 161 A screw steamer of war, the San Jacinto, belonging to the North American States, waylaid the English Royal West India Mail steamer in the Bahama Channel on the 8th November, 1861, and brought her to by firing a round shot across her bows. A lieutenant from the San Jacinto boarded her, and afterwards, aided by a large force of sailors with drawn cutlasses, forcibly took possession of Mr. Mason and Mr. Slidell, envoys supposed to be accredited by the Southern States to Great Britain and to France, and of their two secretaries, with certain papers and baggage. The officer in charge of the mail-bags, a commander in the Royal Navy, protested strongly against the insult offered to the British flag, as did the captain of the vessel; and both claimed the envoys as being under the protection of England. Tlie American lieutenant disregarded the protest, seized the men, and suffered the Royal Mail steamer to pursue her voyage (rw). This act was condemned, though upon different grounds, by the Powers of continental Europe as well as by England. England demanded and finally obtained the restitution of the envoys by the United States, though they never ad- mitted that the inviolability of the envoy was the ground of that restitution (n). They insisted chiefly on the exemption of a neutral vessel from search on the high seas. It was clear upon the principles of Prize Law, admitted equally by the United States and by England, that the taking the envoys out of the neutral ship was unlawful, the State of the neutral ship having a right to demand a formal adjudication in a proper Court upon the guilt or innocence of the ship, inasmuch as, if she were not guilty, by reason of carrying the envoys, the invasion of her deck and the interference with, much more the taking away of, her passengers, was an offence against International Law, for (m) Case of the Seizure of the Smithcrn F.nvmjs. Pauiplilet published by Ridpway,'l861, p. 1. (m) See Dana's note, before referred to. VOL. II. M 162 INTERNATIONAL LAW. which the offenders were liable to the penalty of full costs and damages in the Prize Court ; whereas, on tlie other hand, if the act of the ship were found to be unlawful, it miffhfc enure to her condemnation. The contention of England was that the Trent was not carrying contraband despatches ; and that she was carrying persons whose characters exempted them from the operation of hostilities. The despatches which are contraband are communications from a belligerent to another part of its own kingdom, or to a colony, or to an ally with respect to naval or military operations, or political affairs. These are the kind of despatches which Lord Stowell held (with the approval of American jurists) to be contraband (o). But despatches from a belligerent (as Lord Stowell truly says) to his consul resident in a neutral State may lawfully be carried by a neutral vessel, because the functions of the consul relate to the joint commerce in which the neutral as well as the belligerent . is engaged (77). Much less, then, are the despatches of a belligerent to a neutral, relating merely to questions of amicable intercourse between the two States, of the nature of contraband (y). It is manifest that the interests of the neutral may imperatively demand such an intercourse ; and it is easily shown that the lawfulness of such intercourse is a necessary consequence from even the limited recognition of a de facto State as a belligerent. A State so far recognised must have organs of communication vnth the neutral. How is the neutral, for instance, to obtain redress for injuries done to her own subjects ? She must have some regular channel — in other words, she must recog- nise, for this purpose, at least, a Government and a diplo- matic officer. But the neutral State has rights beyond this. She is entitled to communicate with all the belligerents for f 0) The Caroline, 6 Roh. Ad. B.ep. 466. The Atalanta, 2 Mob. Ad. Rep. 440-401. (p) The Madison, Edwards, Ad. Rep. 224. (?) The Caroline, 6 Rob. Ad, Rep. 468. EMBASSY — WHO MAY SEND. THE TRENT. 163 the purpose of bringing about peace : for a state of war is a state of unmerited suffering to the neutral, which she is justified in seeking by all lawful means to bring to an end. " It would be almost tantamount" (Lord Stowell says) "to " preventing the residence of an ambassador in a neutral " State, if he were debarred from the means of communicat- " ing with his own." Most clearly, therefore, the despatches were not of the nature of contraband (r). (s) The next question is, as to the persons of the envoys. It would be strange if the living man were treated as contraband when his despatches were innocent. But it was contended, on behalf of the United States, that though the envoy was not ex- actly contraband, he may be seized on his voyage — in transitu, and these commentaries were cited in support of this opinion. In these commentaries there are two passages on the sub- ject — one in which the Author is dealing with the question of a civil war, — the passage which precedes the observations which have just been made, and which ends with the remark- able citation from Grotius, " in hoc eventu gens una quasi " du£e gentes habetur." The Author is here speaking of emissaries between the parties to the civil war. The argu- ment is of course still stronger as to emissaries to a third State. The note, it has been seen, refers to the opinion of Bynkershoek, which is to the effect that if both parties to the civil war be de facto independent, they enjoy the full rights of legation ; but if one party be still struggling, and not yet independent, he enjoys these rights with regard to third States only. Then follow these words, decisive of the present question : — "ab alia missi ad externum principem " habentur pro nunciis (t)." This is exactly the position of law which was relied upon by England. In the other passage (?•) Case of the Seizure of the Southern Envoys. Pamphlet published b_v Bidgway 1861, p. 10. (s) Seizure of tlie Smdhei-n Envoys — from Pamplet. (i) rhillimore — CommeiH. mi Iiitm-n. Law, vul. iii. § cclxxi. M 2 164 INTERNATIONAL LAW. of these commentaries, to which alone reference was then made, — the Author is dealing with the subject of contraband, and he uses the very words of Lord Stowell's judgment in the Caroline, which legalises the carrying of diplomatic despatches by the neutral vessel. Lord Stowell says : — "It is, indeed, competent for a belligerent to stop the " ambassador of his enemy on his passage ; but when he " has arrived, and has taken upon himself the functions of " his office, and has been admitted into his representative " -character, he is entitled to peculiar privileges, as set apart " for the protection of the relations of amity and peace, in " maintaining which all nations ar€, in some degree, inte- " rested. With respect to this question, the convenience of ." the neutral State is also to be considered ; for its interests " may require that the intercourse of correspondence with " the enemy's country should not be altogether interdicted ; it " would be almost tantamount to preventing the residence of " an ambassador in a neutral State, if he were debarred from " the means of communicating with his own." Lord Stowell does not here lay down the doctrine, that a belligerent may take an envoy out of a neutral ship. That question was not before him. He founds, chiefly upon Vattel (whom the earlier part of his judgment especially cites), the general dictum, that the belligerent may seize the ambassador of another belligerent at a certain period, namely, before he has been accepted by the State to which he is sent ; after that event, the belligerent may not seize him anywhere. Before that event, he may seize him, — but when and where ? the reference to Vattel answers the question — when he is passing through his own territory. Vattel justifies the seizure by England of a French ambas- sador, travelling to Berlin through the Electorate of Hanover, because Hanover at that time belonged to England. " Non- " seulement done on pent justement refuser le passage aux " ministres qu'un ennemi envoie a d'autres souverains : on " les arrete meme s'ils entreprennent de passer secretement " et sans permission." Where? "Dans les lieux dont on EMBASSY WHO MAY SEND.— THE TRENT. 165 " est maitre (ii)." Not on board a neutral ship on the high seas. Lord Stowell's judgment must be read by the light of this passage in Vattel, to whom he had referred. Lord Stowell says : — " The former cases were cases of neutral stips carrying " the enemy's despatches from his colonies to the mother " country. In all such cases you have a right to conclude " that the effect of those despatches is hostile to yourself, " because they must relate to the security of the enemy's " possessions, and to the maintenance of a communication " between them ; you have a right to destroy these posses- " sions and that communication, and it is a legal act of " hostility to do so. But the neutral country has a right to " preserve its relations with the enemy ; and you are not at " liberty to conclude that any communication between them " can" partake, in any degree, of the nature of hostility " against you. " The enemy may have his hostile projects to be attempted " with the neutral State ; but your reliance is on the " integrity of that neutral State, that it will not favour, nor " participate in such designs, but, as far as its own councils " and actions are concerned, will oppose them. And if " there should be private reason to suppose that this confi- " dence in the good faith of the neutral State has a doubtful " foundation, that is matter for the caution of the Govern- " ment, to be counteracted by just measures of preventive "policy, but is no ground on which this Court can pro- " nounce that the neutral carrier has violated his duty by " bearing despatches, which, as far as he can know, may be " presumed to be of an innocent nature, and in the mainte- " nance of a pacific connection {x}." It was not denied in America that this is both the general and the correct law respecting ambassadors ; but the con- duct of England eighty-two years ago was cited against («) Droit des Gens, 1. 4, c. 7, a. 86. {x) The Caroline, 6 Rob. Ad. Rqy. 466. 166 INTERNATIONAL LAW. her (?/). It was stated that an English officer, in 1780, took Mr. Laurens, the envoy from the rebel colonies of North America to Holland, out of a Dutch ship, and that he was committed to the Tower as a traitor ; but the facts of the seizure were inaccurately stated. Adolphus has a correct epitome of them : — " Meanwhile" (says this historian) "the state of sullen " dissatisfaction which occasioned the abolition of the ancient " connection between Great Britain and Holland, resolved " itself into active hostility ; the mystery which had covered " the views and conduct of the Dutch was removed ; and " the Court of Great Britain was impelled to a firm and " decisive mode of conduct, as well in resentment of past " treachery as vnth. a view to counteract the effects of the " neutral league. The Vestal frigate, commanded by " Captain Keppel, took, near the banks of Newfoundland, " a Cojigress packet. The papers were thrown overboard ; " but by the intrepidity of an English saUor, recovered with " little damage. '•' They fully proved the perfidy of the Dutch, who, " before the existence of any dispute with Great Britain, "■ had entered into a formal treaty of amity and commerce " with the revolted colonies, fully recognising their indepen- " dence, and containing many stipulations highly injurious " to England, and beneficial to her enemies, both in Europe. " and America. Disagreements on some of the arrange- " ments had occasioned delays in its completion. But " Henry Laurens, late President of the Congress, who was " one of the passengers in the captured vessel, was author- " ised to negotiate definitely, and entertained no doubt of " success. On his arrival in London, Mr. Laurens was ex- " amined before the Privy Council, and, on his refusal to " answer interrogatories, committed to the Tower (z)." (y) In a letter to Mr. Sumner, not, I believe, the Chairman of the Connnitlee of P^oreign riclutions in Congress. (s) Adolphis, Jlisluiij of Enijland, vol. iii. p. '22\. EMBASSY WHO MAY SEND. THE TRENT. 167 Adolphus is perfectly accurate in saying that the Mercury, commanded by Captaia Pickles, was, as the names indicate, an American belligerent vessel. The despatches from Captain Keppel to the Admiralty afford proof of the fact. The vessel was condemned in the Vice- Admiralty Court (commissioned as a Prize Court) in New- foundland. Laurens was brought to England. The dif- ference between this case and that of the Southern Envoys is obvious. First, despatches were thrown overboard — an act which has frequently enured to the condemnation of a neutral ship ; secondly, the ship was not Dutch, and neutral, but American, and helligerent; thirdly, Holland was only professedly neutral, but really belligerent against England, as those very despatches demonstrated. The declaration of war by England against her followed close — namely, on the 20th December, 1780. Fourthly, the ship as well as the man was captured. So clear, indeed, was the justice of the seizure, that neither Holland herself, nor any other State, uttered, then or afterwards, the semblance of a remon- strance against the act. This supposed precedent turns out, then, to be no precedent at all ; were it otherwise, Inter- national Law is not made out of a single bad precedent, but out of soLind principles applied to each case as it arises, and illustrated by consistent practice. Upon the whole the case of the Trent may be considered as having established the proposition that the ambassador of a belligerent cannot be taken from the ship of a neutral upon the high seas. INTERNATIONAL LAW. CHAPTER III. EMBASSY RIGHT TO RECEIVE. CXXXI. States which have the right to sead, have the right to receive embassies (a), (droit passif — passives Ge.'iinidtschaftsrecht). The active and the passive right of legation are inseparably connected, and, as will be seen, the rule extends generally . to the sending and reception of the same grade of diplomatic agents. It is said by Kliiber and Miruss (J) that dependent States have not necessarily the latter, because they have the former right. But it does not appear on what principle this position is to be maintained, and no authority is cited in support of it. On the other hand, Vattel, Martens, Wheaton, and other writers do not qualify the general principle which has been laid down. Perhaps, however, where the right to send is exclusively derived from treaty, as in the cases of Moldavia and AValla- chia above cited, the right of reception, not being mentioned in the instrument, cannot be inferred as a matter of necessary implication (c). But, as a general proposition, the right of sending and receiving embassies is inherent in all States ; and it there- fore follows that to prevent the free exercise, in either way, of this right, would constitute a very heinous violation of (a) Vattel, 1. iv. c. v. s. 57. Martens, s. 188. Paiido, tit. cuarto. (h) Kliiber, a. ITU. Minisa, s. 80. (c) 1 'idc ante, p. 140. EMBASSY — RIGHT TO RECEIVE. 169 International Law, a crime which, inasmuch as it affected the interests, would justify the interference of all nations on behalf of the one which had been so injured (d). CXXXII. A State has a right to receive, as it has to send, an embassy ; but a State is not under an obligation of duty to send or to receive an embassy. Upon the consideration of this last point three questions arise, viz. : 1. Is a State bound, as a general proposition, to receive an ambassador at all ? 2. Is it bound to receive any ambassador duly commis- sioned ? 3. Is it bound to allow a resident embassy within its territories {legationem assiduam)? (e) CXXXIII. With respect to the first question, the sound opinion appears to be that a State is bound to give audience to an ambassador, and, except under most extraordinary circumstances {/), to receive him for that purpose within its territories and at its Court. If, however, such circumstances do exist, some place must be specified — Vattel suggests the frontier — at which the (d) Vattel, 1. iv. c. v. s. 63 : " De celui ciui trouble un autre dans I'ex- ercice du droit d'ambassade." " Cuando una nacion ha mudado au dinastia 6 su gobierno, la regla general es mantener con ella las acostumbradns relaciones diplomaticas. Portamos de otro modo seria dar a entender que no reoonocemos la legi- timidad del nuevo orden de cosaa: lo que bastaria para justificar un rompimiento." — Pando, tit. cuarto, ccxxix. (e) Zouch, De Jud. inter Oentes, p. 2, s. 4 : " An legatum aliquando admittere non liceat." (/) Orot. 1. ii. c. xyiii. s. 3: "Duo autem sunt de legatis quse ad jus gentium referri passim videmus, prius ut admittantur, deinde ne violentur. De priore locus est Livii, ubi Hanno senator Carthaginiensis in Annibalem sic invehitur : ' Legatos ab sociis et pro sociis venientes bonus imperator noster in castra non admisit : jus gentium sustuUt,' quod tamen non ita crude intelligendum est: non enim omnes admitti prsecipit gentium jus: sed vetat sine causa rejici — causa esse potest ex eo qui tnittif, ex eo qui mittitur, et ex eo oh quod mittitttr." VaHel, 1. iv. c. V. s. 65 : " Sans des raisons tres-particulieres." JFhcaton's Elem. ss. 1-261. 170 INTEENATIONAL LAW. ambassador's message must be received. A State may be aware that an ambassador is sent for a mischievous purpose, or, it may be, from a third nation for a purpose conceived to be inexpedient by the refusing State, e.g., reconciliation with another State. In these cases, ex eo oh quod mittitur, it may refuse the ambassador. CXXXIV. With respect to the second question, it may be unhesitatingly answered in the negative. It is in the discretion of the receiving State to refuse the reception of a certain diplomatic agent; but it is not altogether an arbitrary discretion. Some reason must be alleged for the refusal: " Non enun," says Grotius, " omnes admitti prascipit gentium " jus : sed vetat sine causa rejici " {g). A State cannot reasonably refuse to receive an ambassador on the grounds of sex (h). (ff) Martens, s. 199 : " Du choix de I'ordre et dunombre des ministres." s. 200 : " Du choix de la personne du ministre ;" and Pinheiro ITeiTeira's note on the latter. In this instance his complaint against Martens is just, ■viz., that he was bound to have expressed his own opinion, and. not to have contented himself with a reference to other authorities. Grotius, note (/), last page. Hynkershoek, Q. J. P. 1. ii. c. v. : " Qui recte legati mittantur." (A) Zmich, De Jure Fee. p. 2. s. 4, Q. 9 : " An foeminis legationes man- dari possint," his opinion is, "sed et quandoque foeminse legationihus oh- eundis maxime idonees habitae sunt : " he relies entirely on authorities dravsm from Boman writers. Merlin, ibid. s. iii. Bynk. ibid, treats with contempt the argument that women were in- capable by tlie Roman law, — a rule, he says, violated in practice by the Romans, but otherwise of no avail : " nam de suis subditis princeps statuit pro arbitrio suo, de alienis non etiam ;" he observes that neither " ratio " nor "nsus" exclude women from being diplomatic agents. Not "ratio" "in fcBminis enim reperies quicquid in legatis jure desideraveris ;" not " usus," for Paschalius in Legato, c. xx., has accumulated instances of their employment : he cites passages from Plato, Plutarch, and Tacitus to prove the abilities of women, and makes this curious Dutch- pleasantry, " sed ne mulieribus, satis ut plurimum cristatis, cristos videor erigere, plura non addo.' The passages in the Roman law will be found, Biy. 1. iii. t. i. s. i. 5, " (Prtetor edicto excepit) sexum dumfoeminasprohibot pro aXiis posttd are. EMBASSY REFUSAL TO RECEIVE. 171 The League of Cambrai in 1508 was signed by Margaret of Austria, in the name of her brother, Charles V. In the same place Louisa of Savoy, mother of Francis, signed a peace, sometimes called Le Trait6 des Dames. It is said that, in the reign of Henry IV., France sent an ambassadress to Constantinople. In 1645, Louis XIV. sent la Marechale de Guebriant to conduct to Poland the Princess des Gouzaques, bride to the King of Poland. Wicquefort says, erroneously, that she was the first female diplomatic agent. The Duchess of Orleans negotiated as Plenipoten- tiary the Treaty between France and England, which in Charles II. 's time detached the latter country from its alli- ance with Holland. "Minus frequentari," (says Bynkershoek) "mulierum " legationes res certa est, sed non minus certa, etiam olim " minus' fuisse frequentatas. Sed plus minusve sint fuerintve " frequentatas, jus principis non toUit, ejus igitur voluntas, " etIam in hac causa, suprema lex est " (i). CXXXV. A State may reasonably refuse to receive one of its own subjects as a foreign diplomatic agent, especially if its constitution forbid the subject ever to put off his alle- giance. One very good reason for refusing such a diplomatic agent is the expediency of avoiding the very difficult question which may arise, from a possible conflict between his privileges as a foreign ambassador with his present and former obligations contracted as a subject : for it will be seen that a class of these privileges is founded upon the fact that the bearer of Et ratio quidem prohibendi est, ne contra pudicitiam sexui oongruentem alienis causis se immisceant, ne virilibus ofBciis fungantur mulieres." lb. L. t. 7, s. 4: "Sed et eos, quibus jua postulandi non est, legatione fungi non posse, et idee in arenam missum non jure legatum esse Divi Severus et Antoninus resoripserimt." lb, L. t 17, s. 2 : " Fosniinse ab omnibus otficiis civilibua vel publicis remotse sunt," &c. (i) Bijnk. De Foro Ley. c. xi. Q. J. P. 1. ii. c. v. The " Qiusationes Juris Publici " were published after the treatise " De I'oro Legatorum." 172 INTERNATIONAL LAW. them is not a subject of the country in which he is residing ai an ambassador (_;). Bynkershoek (k) is of opinion that no objection exists to the employment of a subject ; but he builds his opinion on the proposition that there is no reason why a subject should not serve two masters, or rather be actively the subject of one and passively the subject of another. Yet Bynkershoek himself is obliged to qualify his proposition with the condition that the interests of the two masters do not come into conflict, or that, if they do, the ambassador take no part in them. In France (l), it has been for some time settled as a con- stitutional maxim that subjects are not admissible as am- bassadors. An exception appears to have been formerly made in favour of the ambassador from Malta. The Swedish Law equally forbids the reception of a subject as a foreign ambassador. The old German Confederation refused ujjon special grounds to receive any Frankfort Burgher as the representative of any member of the Confederation ex- cept of Frankfort itself (w). (j) England does not allow one of her subjects to act as a diplomatic agent in England. See case of Dr. Stewart, Debate in the House of Com- mons, June 2, 1871. (^) De Foro Legatomm, c. xi. (J) De Cailleres, in his TraM de la manibre de negocier avec les souverains, speaks of this custom as peculiar to France ; but if it ever was peculiar, it is not so now, for such a rule would probably be now adopted by all the Great Powers. — Merlin, ib. v. Bynk. De F. L. c. xi. (m) Heffters, s. 202. n. 1. Sir T. Twiss observes {Law of Nations, ii. p. 276) : — " A nation may refuse to receive one of its own citizens as the represen- tative of a Foreign Power, and in some countries it is a state- maxim that a subject is not to be received in such a capacity. Such was the rule of the French' and Swedish' courts, and likewise of the United Pro- vinces.^ But in recent times two French subjects have been accredited to and received by the French court as the Representative Ministers of Foreign Powers — Count Pozzo di Borgo as Minister of Russia, and the Count de Bray as Minister of Bavaria. Ch. de Martens speaks of both these distinguished diplomatists as having been naturalised in the foreign countries which they respectively represented." * De Cailleres, Traitc de la mani'ere de negocier avec les souverains, c. 6, p. 72. ' Cvdeic Legum Succia- ; tit. de Crimin., § 7. ^ Bynkershoek, de Foro Lcgidorum, c. ii. EMBASSY — REFUSAL TO RECEIVE. 1V3 As a State may exercise its right of refusal absolutely, it may also exercise it conditionally. A State may declare beforehand the terms under which it will consent to receive its own subject as a foreign diplo- matic agent. But if the subject be received without any such previously promulgated stipulation he will be entitled to the full jus legationis. But this is a point of which the discussion belongs to another place (w). C XXXVI. That the exile is in any case, though more especially if his return be forbidden by law, subject to the refusal of his own country, cannot be doubted (o) ; the only doubt is, as will be seen hereafter, whether he can escape, by virtue of his ambassadorial character, punish- ment in the State which had exiled him, to which he has returned without permission, and therefore with an additional offence. In 1697, the English ambassador to Fi'ance obtained per- mission from the Government of that country to include among his suite certain Frenchmen and refugees on account of their religion, without which permission Bynkershoek thinks France might have claimed them " ut reversos " exules " (jo). Still more justly may a State refuse to receive a criminal whose sentence is yet unexecuted. A Dutchman con- demned to a criminal punishment by the Dutch East India Company fled from India to England, and was sent by the latter country as a diplomatic agent to Plolland. Imme- diately on his arrival at the Hague (1636), the Dutch Company induced the Government to put him in prison, from M. Guizot sent the accomplishecl and ill-fated Eossi, an Italian natu- ralised in France, as ambassador to Rome; he justifies this act in his memoirs. (n) Story's Comment, on the United States, 1. C69. Miruss, s. 83. (o) Bynk. Q. J. P. 1. Ji. c. v. Zouch, p. 2, s. 4. (/)) Q. ,;. P. 1. ii. c. V. 174 INTERNATIONAL LAW. which, however, he was shortly afterwards liberated, chiefly, according to Bynkershoek, because the States General were very anxious at that particular period to be on good terms with England (17). The fact of the ambassador not being a native of the State which sent him would not alone afford a reasonable cause for refusal. The subject of a third country might be the domiciled citizen of the country which employed him as ambassador, and, even if he were not domiciled, no objection seems to lie against him, on the sole ground of his not being a native. CXXXVII. The private rank or birth of the am- bassador, who is sufficiently ennobled by his Sovereign's choice, can constitute no ground of refusal. The King of Spain emjiloyed Eubens as ambassador both to England and Holland (1633). A State, however, would for its own honour justly refuse a notoriously scandalous person, and less justly, but lawfully, any person known to be personally disagreeable to the head of the State (r). How far the religion of the ambassador can be considered an objection, will be presently discussed (s). It is only necessary to state here that no State is bound to receive a Papal Legate or Nuncio, armed, either by specific instruc- tions or by the general Canon Law, with powers injurious to the Established Church or to the sovereignty of the State over all causes, ecclesiastical as well as civil. (q) Q. J. P. I. ii. c. V. Merlin, ib. iv. (?■) WicquefoH, i. s. 13. V Amhassadeur doit cstre agreable. " Le mesme droit de gens qui ne permet pas qu'on fasse violence ou outrage au ministre qui a est^ adniis et reconnu, permet aux princes de ne point admettve un ministre dont ils puissent recevoir du d(5plaisir." AVicquefort gives a catalogue of ambassadors refused on this ground. The Duke of Bucking- bam, employed by Ch.irles 1., mi^'bt well have been rejected both by Spain and France on account of the insolence and arrogance of his conduct. (s) J^ich post, Religion and tqe State. Ilcfficrs, s. 200, n. 4. Miruss, a. 1)4. EMBASSY REFUSAL TO RECEIVE. 175 States have a right to refuse the reception of such a minister, or to demand that these powers be limited and defined, so as to be consistent with their safety, before the bearer of them be admitted. The notification of the refusal to receive ought to be made. If possible, before the ambassador has left his own country, but it may be imparted openly on his arrival, or tacitly by not accepting the letters of credit (t). CXXXVIII. The existence of a state of war between two nations by no means relieves them from the necessity of receiving each other's ambassadors, not, of course, for the purpose of residence, but of audience. It may be necessary to demand a passport or safe conduct, through the interven- tion of a third State or of a herald, and what it is necessary to demand may be refused ; but the refusal cannot law- fully be grounded on the mere existence of a state of war, for the greater the evil the more stringent is the obligation upon nations to adopt the readiest means of putting an end to it (m), and especially those which are most likely to prevent or stay the shedding of blood. CXXXIX. We have now arrived at the discussion of the third question propounded, viz. : — Is a State bound to allow a resident embassy (legationem assiduam) within its territories ? The continuous residence of an embassy is, to speak strictly, a matter of comity and not of strict right (x). {t) Minm, s. 82. (u) Vattel, 1. iv. c. v. s. 67 : Comment on doit admettre les minis^res d'un ennemi. {x) Whcafon, El. 2, 261, 262. Merlin, ib. a, 3. Heffters, s. 200. Ward, vol. ii. p. 484. Lord Coke, speaking of Henry VII., says, " that wise and politique king would not in all his time suffer Lieger {i.e. resident) ambassadours of any foreign king or prince within his realm, nor he with them ; but upon occasion used ambassadours." — 4 Inst. 155. Charles I. expressed resentment against the Dutch for not sending a resident embassy to England. — Wioq. Mem. touch, les Amhassadeurs, 25. In 1600, a noble member of the Polish Diet complained of the continued 176 INTERNATIONAL LAW. Nevertheless, so long a custom and so universal a con- sent have incorporated this permission of continuous resi- dence into the practice of nations, that the gross discourtesy of refusing it would require unanswerable reasons for its justification, and .would place the refusing in so unfriendly an attitude towards the refused State as to be little re- moved from a condition of declared hostility. Grotius, indeed, says, " Optimo autem jure rejici possunt, " quffl nunc in usu sunt legationes assiduse, quibus quam non " sit opus (y), docet nos antiquitas cui illse ignoratge " (z) ; but it must be remembered that since this opinion was ex- pressed, a usage of two additional centuries has imparted, according to the principles laid down in an earlier chapter (a) of this work, a character approaching to that of positive law upon this institution of resident embassies. Vattel (b) therefore declares, that even in his time the residence of tlie French ambassador, "que le s^jour de rambassadeur estoit suspect, parceque les ainhassadeurs mit accoustum.es de se retirer dis que leur negociation est achevee." In 1668, an attempt was made by various members of the Diet to send away all ambassadors ; it was resisted by the king and senate, but is said to have been one of the chief causes of the dissolution of the Polish Diet. — Wicquefm-t, 1. viii. (y) The Justinian law was unc[uestionably adverse to the notion of a resident ambassador. It had no idea of protecting foreign commerce, " perniciosumurbibiis mei-dmonium'" {CodA. iv. t. 6-3, s. 3.), which it forbad nobles to exercise, and which it conceived might lead to a revelation of the secrets of imperial policy. The Code contains a very curious law, beginning : " Mercatores tam imperio nostro quam Persarum regi sub- jectos, ultra ea loca, in quibus foederis tempore cum memorata natione nobis convenit, nundinas exercere minime oportet : ne alieni regni {quod non convenit) scrutentur arcana" &c. — lb, s. 4. (z) L. ii. c. xviii. s. 3, 2. la) Vide ante, vol. i. chap. v. p. 41. (6) Vattel, 1. iv. c. v. s. 66. Des Ministres riddents. "La coittume d'entretenir partout des ministres continuellement r&idents, est aujour- d'hui si bien stabile, qu'il faut all(5guer de tres-bonnes raisous pour refuser de s'y prefer sans offenser persouue." Miruss, s. 82. "Iludii; tiimen ita usurpantur ut siue illis amicitia vix stabilis inter EMBASSY — RESIDENT. 177 custom was so deeply rooted as to require excellent reasons for its abrogation by any individual State. populos diversos coli videatur etsi nee minus usum liabeat exploratorum." — Suherua de Jure Civili, 1. iii. o. xii. The whole question is well summed up : " Se dehen i-ecibir los mini- stros de un soberano amigo : y dunqiie no estamos extrictamente obligados a tolerar su residenoia perpitua, esta pratica se ha hecho tan general en nuestros dias que no pudiSranios separarnos de ella sin niuy graves motives," — Fando, tit. cuaito, ccxxix. VOL. 11. N 178 INTERNATIONAL LAW. CHAPTER IV. EMBASSY GENERAL STATUS. CXL. We have now considered the Rights and the Duties incident to the sending and receiving of embassies. The next subject for discussion is the Status which Inter- national Law ascribes to those who are so sent, and to those who are so received. This status is composed of rights stricti juris, resting upon the basis of natural law and therefore immutable, and of privileges, originally not immutable, but so rational in their character, and so hallowed by usage, as to be universally presumed, and to become matter of strict right if their abro- gation have not been formally promulgated (a case almost inconceivable) before the arrival of the ambassador. The former are usually described under the title of inviolability, the latter under the title of exterritoriality (a). It is with the former that we are at present concerned (6). CXLI. The right of sending embassies being estab- (ffl) The necessity of the case, the usage of foreign -writers, the great convenience of the term, will, it is hoped, justify the attempt to naturalise this word. (V) Vattel, 1. i-v.c. v. s. 55, ib. c. vii. s. 81, and s. 103. "Nous avons d^duit riudi5pendance et I'inviolabilitiS de I'ambassadeur des principes naturels et ndcessaires du droit des gens — ces prerogatives lui sont confirmees par I'usage et le consentement general des nations." Heffters, s. 204: " eia so von selbst sich verstehendes HecM." S. 205. " In cler Natw der Sache ist nun ein Mehreres nicht begriindet ab." u. s. w. KUihei; s. 203 : " Den Gesandten raumt theils das natilrliche Volken-echt, theils das positive der Europaisohen Staaten besondere Vorrechte ein." EMBASSIES — INJURIES TO. 179 lished, the personal inviolability (inviolabilitas, inviolabilite, Unverletzbarkeit) of the ambassador follows as a necessary- consequence. Every foreigner, indeed, is under the protection of the State in which he is commorant, and is so far inviolable. But this attribute is in a special manner ascribed to the representative of a Foreign State, in whom the image of his Sovereign and the majesty of his country are as it were visibly present; therefore the expression of sanctity (sanctitas, personne sacree, Heiligkeit) is often applied by jurists, philo- sophers and historians, of all ages and countries, as applicable to the bearers of an embassy (c). CXLII. Any oiFence committed against their person is or ought to be considered by the State as an oifence against the State itself {crime ITY — CRIiNIINAL LAW. 195 CHAPTER VII. EMBASSY INVIOLABILITY — CPaMINAL LAW. CLIV. We have now to consider the very grave and difficult question, whether the inviolability of the ambassador shields him from responsibility to the criminal law of the State to which he is delegated — may he, with impunity, conspire against the Sovereign {crime cTEtai), or commit outrage on the lives and properties of the subject {delit prive) ? CLV. With respect to criminal offences against the Private Law, these may be of two classes : (1) against the property, (2) or the life of individuals. With respect to the former, the reason of the thing and the nature of the ambas- sador's function unquestionably demand his exemption from the criminal tribunals of the country. The Sovereign may, according to the gravity of the offence, signify, in various ways, his displeasure, or demand his re- call ; but he can neither be punished nor arrested (a). In 1763, the Ambassador of Holland at the Court of the Landgrave of Hesse-Cassel was accused of mal-administra- tion of a testamentary trust. The Government of Cassel called upon him to render an account, which he refused to do, whereupon he was arrested with a view to obtain from him the necessary documents connected with the trust. But the Landgrave was obliged to send a special embassy to Holland, to make apology and reparation for this infraction of International Law {b). (a) De Garden, vol. ii. p, 149. (i) Ibid. pp. 149, 150. o 2 196 INTEKNATIOXAL LAW. CLYI. With respect to graver offences against the Cri- minal Law, such as murder, the question is more diiScult ; but the true proposition of International Law upon this subject is as laid down by Grotius, namely, that the guilty person cannot be tried by the foreign tribunals (c). This doctrine is also supported by Wicquefort {d), Zouch (e), Bjnkershoek (/), and Vattel {g). Great authorities in the English law, Coke (A), Comyns (i). Hale (Ji), Foster (Z), held a contrary doctrine ; but Blackstone (rri) correctly states that, whatever. may have formerly been the opinion, this country follows, as others do, the opinion of Grotius. CLVII. With respect to crimes against the majesty of the State, such as conspiracies against the Government or the Sovereign thereof, it appears to be now the clear law that no judicial process in the State against which the oifence has been committed can be put in. motion against the Representative of a Foreign Sovereign. CL VIII. Such appears to be the best and most generally received opinion. There are not, however, wanting writers who draw a distinction between the commission of mala pro- hibita and mala in se, and between privata and publica de- licta. But the reasons of exemption apply to botli cases ; namely, first, because the nature of the ambassador's func- tions demands the most absolute freedom in every case that (e) Orot. 1. ii. c. xviii. 4, 5. Ward, Tol. ii. pp. 516-16. (d) " Wicquefort (Mr. Ward truly observes) composed his Treatise on Ambassadors to establish this proposition, he being at the time under- going punishment from Holland, while minister of Luneburgh at the Plague, for betraying the secrets of Holland, in whose service he also was." (e) Solut. QtiTst. De Leg. del. Jud. Comp. If) De Foro Lecj. e. 17, 18, 19. (^. J'ide ante, \ol. i. -p. 21. (ill) Comment, i. 2.")-"), 2.")4, EMBASSY INVIOLABILITY — CRIMINAL LAW. I97 may arise, " securitas legatorum utilitati qua3 ex poena est " preponderat " («). Secondly, because the ambassador represents the person of another, and is recognised in that capacity by the tacit compact by which he is admitted into the country (o) ; it has been nobly said : " ils sont la parole " du Prince qui les envoie, et cette parole doit Stre " libre " {p). It is not meant, however, to convey the impression, either that the ambassador is to escape without punishment, or that the State in which he is discharging his functions is power- less to resist his open violence {q), or to stay his secret machinations against her public safety (r), or to redress the rights of a subject whom he may have criminally injured [s). It is the duty and the right of the injured State, under these circumstances, to oppose force to force, and in the event of secret machinations, to secure the person of the ambassador and remove him from her borders, and in the case of the privatum delictum, to insist upon his being tried by the tribunals, or the proper authorities, of his own country (t). (n) Gh-ot. 1. ii. c. xviii. 4. \o) Ward, vol. ii. p. 516. Grot. ]. ii. c. xviii. 4, 5. Huberus, Be J. C. 1. iii. c. 12, 22, 24. {p) Montesquieu, De VEspr. des Lois, Pt. II. 1. xxvi. 0. 21. (q) "Quod si vim armatam intentet legatua, sane oocidi poterit, Don per modum pcence sed per modum naturalis defensioiiis." — Orot. 1, ii. 0. xviii. 4. 7. (r) "Pour ce qui est des crimes d'Etat les mesures les plus s^veres a I'lSgard d'un envoys, soit qu'il ait agi d'apres les instructions de sa cour ou spontan^ment ; a la v^rit^, il n'est pas permis, dans ce cas meme, de lui faire subir une peine corporelle, mais le droit de le faire arreter et transporter, sous escorte, tors des frontieres, est reclame sans opposition par toutes les puissances." — De Garden, Tr. de Dipl. vol. ii. pp. 150-1. (s) " Si le dflit a cans6 un scandale public, le Prince porta ses plaintes au souverain du ministre, demande meme le rappel ou la punition du coupable, et il y a des exemples, qu'en pareille cii'con- stance, on a interdit a I'envoyiS de paraitre a la cour. Si le fait est av6r6, ou ne saurait refuser son rappel ou sa punition," — lb. 150. (i) Kluber, s. 211. Stephens' (Blackstoiie's) Comm. ii. p. 498 (ed. 1858). 198 INTERNATIONAL LAW. CLIX. One of the questions put to the civilians in the case of the ambassador to Mary Queen of Scots, which has been already referred to (m), was : — " Whether, if an ambassador be confederate, or aider, or " comforter of any traitor, knowing his treason toward that " Prince towards whom and in whose realm he pretendeth " to be ambassador, he is not punishable by the Prince in " whose realm and against whom such treason is committed " or confederacy for treason conspired ; " and to this they answered, " We do think that an ambassador aiding and " comforting any traitor in his treason toward the Prince " with whom he pretendeth to be ambassador in his realm, " knowing the same treason, is punishable by the same " Prince against whom such treason is committed." The opinion of the five civilians at first was considered as decisive against the Bishop, but he replied with firmness that he had entered England under a safe conduct, and with the full privileges of an ambassador. Lord Burleigh said that no privilege could protect an ambassador offending against the public majesty of the Prince in whose court he was resident, and that such conduct rendered him liable to a penal action. But the Bishop still insisted upon the privileges of an ambassador, and observed, with equal courage and truth, that they had never been violated via juris .led via facti, never by regular form of trial, but by violence. He was detained for some time in prison, and then banished from the country, but the Duke of Norfolk and other conspirators were put to death. This case has formed the text of all future discussions upon the subject of the inviolability of ambassadors. The opinion of Elizabeth's civilians has been deservedly and generally rejected, by the authority of the best writers, as well as by the practice of the most civilised States (v). (m) Vide ante, p. 187. {v) Bynk. De Foro Ley, c. vi. EMBASSY— INVIOLABILITY — CRIMINAL LAW. 199 Case of Mendoza, the Spanish Ambassador {x). CLX. We now proceed to consider the leading cases in which the doctrine of ambassadorial inviolability has been brought under discussion. In the year 1 584, not long after the opinions delivered in the Bishop of Eoss' case, Mendoza, the Spanish Ambassador in England, having conspired to introduce foreign troops and dethrone the Queen {y), it was a matter of difficulty how he should be punished. The Government, however, took the opinions of the celebrated Alhericus Gentilis, then in England, and of Hottoman in France, who both asserted that an aiabassador, though a conspirator, could not be put to death, but should be referred to his principal for punishment; or (according to Hottoman) sent away by force out of the country {z). In consequence of this, Mendoza was simply ordered to depart the realm, and a commissioner sent to Spain to prefer a complaint against him (a). Case of L'Aubespine, French Ambassador. CLXI. Three years afterwards there was a conspiracy not only to dethrone the Queen, but to put her to death. The circumstances were these : — L'Aubespine, the French Ambassador, endeavoured to procure the assassination of Elizabeth. For this purpose he tampered, both by himself and secretary, with William Stafford, a man about the Court. StaiFord refused to be concerned in it himself, but recom- mended Moody, a noted ruffian, then in Newgate, to be the instrument. With this man conferences were held by Trappy and Cordalion, both of them secretaries to L'Aubespine. Stafford revealed the plot. Trappy was arrested, and both {x) The following cases are extracted froia Mr. Ward's Law of Nations, vol. ii., and the Ca-uses celeb, by JDe Martens. (y) Camden, 296. (z) Zouch, Solut. Qucest. 130. (a) Camden, ubi sup. 200 INTERNATIONAL LAW. he and Stafford confessed the whole before the Council. The ambassador was sent for, but said "he would not hear " any accusation to the prejudice of the privileges of ambas- " sadors." When Stafford was brought in, however, he assented to his knowledge of the matter, but said it was first propounded by him. Stafford, on the contrary, pro- tested on his salvation that the first he knew of it was from the ambassador. Lord Burleigh then reproached him with the design, yet never thought of trying him. All that we can find is, that he bade him beware how he committed treason any more ; that the Queen would not, by punishing a bad ambassador, prejudice the good ; and that he was not acquitted from the guilt of the offence, though he escaped the punishment (b). Case of one of the Retinue of the Due de Sully, French Ambassador. CLXII. In 1603, the Due de Sully, then Marquis de Eosny, being ambassador at London, one of his retinue quarrelled at a brothel with some English, one of whom he killed. The populace rose, but were quieted by the Lord Mayor, who demanded justice. Justice, however, was not done by the magistrate, but by Sully himself, who assembled a council of Frenchmen, condemned the man to death, and not till then delivered him to the cvrA power. James I. pardoned him, but no attempt was made to try him by the English laws, and Sully delivered him up solely for execu- tion (c). (J) Camden, ad an, 1587. (c) Mem. de Sidl. t. ii. pp. 191, 192. Another and a very curious question arose out of this case ; the French contending- that, although James might remit the execution of the man in England, yet, heing a Frenchman, and judged by his own tribunal, he could not grant him a pardon. EMBASSY — INVIOLABILITY — CRIMINAL LAW. 201 Case of Inoyosa and Colonna, Spanish Ambassadors. CLXIII. In the reign of King James I. of England, the Spanish Ambassadors, Inoyosa and Colonna, endeavoured to breed a disturbance in the country, by informing the King that the Duke of Buckingham meant to imprison him by means of the Parliament, and to transfer the regal authority to the Prince of Wales. Both the Court and the Parlia- ment deemed this a scandalous libel, but knew not how to proceed with the ambassadors. Sir Robert Cotton, who was consulted, wrote a tract called " A Relation of the Pro- " ceedings against Ambassadors who had miscarried them- " selves," in which he asserts, " that an ambassador repre- " senting the person of a Sovereign Prince, he is by the Law " of Nations exempt from Regale Tryale ; that all actions of " one so qualified are made the act of his master, until he "disavow them; and that the injuries of one absolute " Prince to another is factum hostilit.atis, not treason, so " much doth public conveniency prevail against a particular " mischief." He then states various examples of ambas- sadors who have had violence put upon them by loay of prevention, rather than punishment ; none of them amounting even to a design to try them ; and then recommends that some of the chief secretaries should wait upon the Ambassador of Spain, and, by way of advice, desire him to keep his house, for fear of the people ; that the Prince of Wales and Duke of Buckingham should complain of the calumny in Parliament ; that both Houses should, in consequence, wait upon the am- bassador, to request to know the authors of it, in order to try them legally in Parliament ; that if he refused, he should then be confined to his house, and a formal complaint sent against him to the King of Spain, requiring such justice to be done upon him as by the leagues of amity and the Laiv of Nations is usual. If the King refused, it would then be " Transactio " Criminis upon himself, and an absolution of all amity, " amounting to no less than war denounced " (d). This was (cl) Cotton's Hfmaiiis, 202 INTERNATIONAL LAW. the oiDinion of the English Court, complaint was made to the King of Spain, and the ambassador allowed to depart, but without the usual presents (e). Case of M. de Bass, Minister from France to Cromwell. CLXIV. In 1654, M. De Bass, Minister from France to Cromwell, was accused of a conspiracy against his life. The Council endeavoured to make him undergo examination, but he refused, saying, that although he would communicate with Cromwell personally, and prove to him that he was not privy to the design, yet he would not submit to interroga- tories before a judge ; for, being a public minister, he would by so doing offend against the dignity of his master, to whom alone he was accountable for his actions. The Council con- tented themselves with ordering him to depart the country in four-and- twenty hours (/). Case of the Ambassador of England at Constantinople. CLXV. In 1646, the Ambassador of England at Con- stantinople was summoned by the merchants before the Divan to answer some complaints. The ambassador repre- senting his privilege, the Grand Vizier said, " he icas aioare " that it was a thiiig unheard of to summon an ambassador " before the Divan, tvhich ivould destroy the rights of ambas- " sudors and the Laio of Nations." It is true, he was after- wards arrested and sent home, but that being solely owing to the revolution in England, and the arrival of a new minister, does not affect the question [g'). (e) Wicqiiefort, i. 393. (/) Thnrloes State Papers, vol. ii. pp. 351, 437. iVicquefort, i. 306. (rf) Wicqiiefini, i. -'108. EMBASSY — INVIOLABILITY — CRIMINAL LAW. 203 Case of Gyllenhurg , the Swedish Ambassador. CLXVI. On the 29th January, 1717, the Government of England having certain information of a conspiracy to in- vade the country and dethrone the King, contrived by Gyllenhurg (li), the Ambassador of Sweden, at that time at peace with Great Britain, they ordered the arrest of that minister, which was accordingly effected. General Wade and Colonel Blakeney, to whom the charge was intrusted, found him making up despatches, which they told him they had orders to seize ; and they even insisted upon searching his cabinet, which, upon the refusal of his wife to deliver the keys, they actually broke open. Gyllenhurg complained of these proceedings, as a direct breach of the Law of Nations, and some of the foreign ministers at the Court of London expressed themselves to the same effect, upon which the Secretaries of State, Metliuen and Stanhope, wrote circular letters to them, to assign reasons for the arrest, which satis- fied them all except Montleone, the Spanish Ambassador, who, in his answer, observed, that he was sorry no other way could be fallen upon for preserving the peace of the king- dom than that of the arrest of a public minister and the seizure of his papers, which are the repositories of his secrets, two facts which seemed sensibly to wound the Law of Nations (?'). This proceeding was, however, clearly justifiable as a measure of self-defence. Case of the Earl of Holdernesse. CLXVIL- In 1744, the Earl of Holdernesse was sent from England as Ambassador to Venice. Passing through the (h) See a full report of this case in Martens, C. C. i. 75, under the title, "Arrestation du Baron de Gbrtz, ministre de Charles XII, Eoi de Suede, sur la riSquisition de i'Angleterre, en 1717." (i) Tindal (C'ontin. of Bapm),h. 28. The proceedings against Gyllen- burg are quoted by Bynkershoek to prove hi.s opinion. — De Fur. Leg. c. xviii. 204 INTEENATIONAL LAW. States of the Emperor of Austria, he was arrested, with his servants, by the Austrian officer in command, on the ground that England, though not at war with Austria, was an ally of her enemies, and that orders had been received to allow no Englishman to pass through that territory. The Earl at last obtained a passport, after signing an undertaking that he would submit himself to the Austrian authority if he should be declared a prisoner, of war. This proceeding was a flagrant violation of ambassadorial rights, and was so considered by Austria, who compelled the officer in command to offer an apology in person to the ambassador (A). Case of 31. Van Hoey. CLXVIII. After the battle of Culloden, in 1746, the King of France, fearing that the Pretender would be taken and treated as a rebel, persuaded M. Van Hoey, the Dutch Ambassador at his Court (through whose agency certain transactions from time to time had been carried on between, the belligerent Courts of London and Versailles), to write to the English Secretary of State for Foreign Afi^airs a letter, entreating that the life of the Pretender might be saved. This interference was greatly resented by England, and the English Ambassador in Holland obtained, in answer to his remonstrances, a severe letter of reproof from the Dutch authorities to M. Van Hoey, who wrote in conse- quence an apology to the English minister (Z). Case of Da Sa. CLXIX. In 1653, Don Pantaleon Sa, brother to the Por- tuguese Ambassador in England, quarrelled with an English- man, Colonel Gerhard, about some matter in the Xew {k) De Martens, C. C. ii. App. 470.— ie Merciire, Hist, de 1744. (I) De Martens, C. C.i. 311. EMBASSY— INVIOLABILITY — CRIMINAL LAW. 205 Exchange ; a scuffle ensued, in which Gerhard was severely- wounded. The quarrel was renewed the next day, at the same place ; but this time Sa came with fifty followers, all armed to the teeth, with the deliberate intention of destroy^ ing his adversary. The result was, that many English were wounded, and one person (a Mr. Greenaway) acci- dentally present, killed ; that the Guards were called in, and fired upon by the Portuguese, several of whom they took to prison ; the rest, with Sa, took refuge in the hotel of the Portuguese Ambassador. The ambassador was afterwards required to deliver up others of the delinquents, which he complied with, and his brother was among them. He interceded for his brother ;' but Cromwell resolved, if he could, to try him by the law of the land. He, therefore, consulted the most eminent of the professors of the civil law, to settle how such a barbarous murder might be punished. But these disagreeing among themselves, he left the decision of the affair to a Court of Delegates, consisting of the Chief Justice and two other Judges, three Noblemen, and three Doctors of the Civil Law. Before these Sa was examined. At first he was supposed to be a colleague in the embassy, and he vaunted himself that he was the King's Ambassador, " and subject to the jurisdiction of no one else." He was made, however, to produce his credentials, by which all that could be proved was that the King intended in a little time to recall his brother, and to give him a commission to manage his afi^airs in England. This being judged insuf- ficient to prove him an ambassador, he was, without any further regard to the privilege of that character, ordered, as well as all the rest, to plead to the indictment. Such is the accurate statement of the affair till it came to a jury, as it appears from the account of Zouch, a civilian of eminence, and himself a delegate in the cause (m). (7)1) Vide Zouch, Solut. Qucestionis, de Leg. deling. Jud. Compet. inprcsf. Sa was tried by a jury under a Commission of Oyer and Terminer. — Hale, Pleas of the Croion, i. 99. 206 INTERNATIONAL LAW. It is evident, from this account of the matter, and one of more authority can hardly be met with, that had Sa been actually ambassador, instead of forming part of the suite, the proceedings against him would have been the same with those in the cases cited above. All, therefore, that can fairly be drawn from this precedent, as to the decision of the then existing law of England, is that the suite of an am- bassador, if they committed murder, were liable to be tried for it by the Courts of the country. Zouch asserts ex- pressly, that his own opinion upon the main question agreed with that of Grotius and the best authors, as to the exemp- tion' of ambassadors themselves ; and it should appear, from his Solutio QucEstionis, that if Sa could have proved that he was an actual ambassador, his plea before the delegates would have been allowed (n). Conspiracy of Cellamare. CLXX. The cases which have been hitherto cited have been those in which the representative of England has been a party. They happen to be also among the most impor- tant cases on this subject of which there is any record. There are, however, others in which England was not concerned, and which are of importance for the principle involved in them. Such was the celebrated case of the Conspiracy of the Prince of Cellamare, at the Court of France, in 1718. The Prince was an ambassador sent to the Court of France from the Court of Spain, by the Cardinal Alberoni, (re) Ward's Laio of Nations, vol. ii. p. 537, who takes his account from Lord Somers' Tracts, 10, 66. et inf. Mr. Ward remarks that Zouch, in the course of his work, also examines the Bishop of Eoss' case, and the opinions of the English civilians upon it, so often cited, and blames those opinions in the most unequivocal terms. It is true, it ought to be observed, that he differs from Grotius in his opinion on the immunity of the mite. See also, De Rinl, Science du Gouv., i. t. v., and De Martens, C. C, ii. 490. EMBASSY — INVIOLABILITY CRIMINAL LAW. 207 at that time Prime Minister of the latter country. The Prince, under the direction of Alberoni, organised a con- spiracy against the existing Government of France ; and the fact having been ascertained by that Government, they gave orders for searching the papers of the ambassador in his presence and at his hotel. Certain of these papers they placed under the joint seal of the King of France and of the ambassador. They afterwards selected those which related to the conspiracy, some of which they published in justifi- cation of their conduct. None of the ambassadors from the other Courts, then resident at Paris, complained of this act as an infringement of the privileges of their order, though a protest from this body has always been usual when any injury has been done to any member of it resident at the same Court. The Prince was placed under custody until intelligence was received of the safe arrival of the French Ambassador from Madrid, whom Alberoni had intended to detain. When this intelligence arrived, the Prince was conducted, under military escort, to the frontier. The next year war was declared between the two coun- tries (o). CLXXI. It has been held by high judicial authority, that if a foreign minister commit an assault, he is so far deprived of his privilege that battery committed on him by way of self-defence is legal, though even such conduct on the part of a foreign minister will not justify an arrest on process {p). It is clear that courts of justice cannot enquire whether a person recognised by the Government as a foreign minister was duly appointed as such or not. The recog- nition of the Government is conclusive upon the judicial tribunal {q). (o) De Martens, C. C. i. 139. (p) United States -v.ZiUIe,^ Washinc/ton (American) 0. C. 205. United States V. Orteffaj 4 ib. 63] . United States v. Benner, 1 Baldwin's Bep. (Amer.) 240. (q) United States v. Ortega, 4 Washington {Amer.) C. C. 531. Tor- lade V. Barrozo, 1 Miles (Amer.) 3(56. 208 INTERNATIONAL LAW. Courts of law have considered that the reasons which necessitate the inviolability of the person of the foreign minister apply to those of his train or suite, and therefore, that an assault upon, and that threats used towards, a Secre- tary of Legation are punishable as a criminal violation of International Law (r). CLXXIL Hitherto the Rights of Inviolability accru- inor to the ambassador in the State to which he is accredited have been considered, but it must frequently happen that on his way to this State he is obliged to pass through the territory of a third State ; and the question arises as to whether he is equally protected and inviolable in this territory (s). It is clear that the third State may refuse to allow an ambassador a passage through her territory for the same reasons that a State may refuse to receive him. Durino; the Middle Ages no doubt seems to have been entertained as to the strict legality of seizing the Sovereign or his representative, passing without safe conduct, pre- viously granted, through such dominions. In all the com- plaints made during the cruel captivity of Richard I. in Austria, by that monarch himself, by the Pope, and by other mediators, it does not appear that it was ever urged that the Duke of Austria had violated the jus gentium, which, so far as embassies were concerned, was certainly well understood by the Canon Law, and must have been familiar to the Pope. As late as the year 1464, Louis XI. justified the arrest, in France, of the Ambassador from the Court of Brittany, as he was travelling to the Court of England, to which he was accredited, though at the time' there was peace between Brittany and France. Later still, during the Thirty Years' "War, Richelieu ar- (r) Sexpublica t. De Longc''i amps, 1 Dall. (Amer.) 117. ExpnHe Cabrera, 1 WashiHijttn (Amer.) C. C.-2:j-2. (•■•■) Tide ante, p. iO-'"!, case of the Earl of lloldernesse. EMBASSY — INVIOLABILITY — CEIMINAL LAW. 209 rested, in France, the Elector Palatine, and subjected liim to a very close imprisonment, assigning as a reason " the " right which all nations had to arrest strangers who come " into the country without a safe-conduct " (if). The ambassadors (tt) of Francis I., passing through Milan on their way to Venice and Constantinople, to which they were accredited, were seized and executed by the Governor of Milan, the officer of Charles V. They had, of course, no passport or safe-conduct ; but there was a truce subsisting between France and Spain. Vattel condemns this atrocity, not merely as a wicked murder, which it unquestionably was, but as a scandalous breach of the International Law {contre lafoi et le droit des gens) {pa), and one which therefore called for the interference of all other States. CLXXIII. It may be doubted whether these murders were a violation of the jus hgationis, though — regard being had to the fact that these ambassadors were travellina; throuo;ii a country with which their master had a truce {y), which is, while it lasts, a peace — the doubt is not very reasonable; but there can be no doubt that it was a shameful infringement of general International Law, the utmost rigour of which would only have authorised temporary incarceration upon strong suspicion. We pass by the horrible aifair of Patkvil, to be shunned as a crime, and not cited as an example (z). (i) In reality to prevent his treating with the array of the deceased Duke of Saxe-Weimar (the leader of a sort of army of freebooters) for the possession of Alsatia. Ward, i. 275, n. 2, 2, 312, citing Bmigeant, Hist, de la P. de Westp. 1. 5, 8, 60. (u) Wiequefort, 1. ], s. 19, p. 433. ^ Vattel, 1. xiv. c. vii. s. 84. {x) The distinction which Wiequefort would establish between the two is wholly inadmissible. What he should have said was, that the offence was not, under the circumstances, " contra jus legationis." This point is well put in the Traiie complet de la Dipl. s. 213. {y) It is strange that Vattel omits this circumstance. (z) De Martens, Causes celebres, t. ii. App. 467. VOL. II. P 210 INTERNATIONAL LAW. In 1756, the English seized, in the Hanoverian territory, upon the French Ambassador accredited to Prussia, and con- veyed him to England. In 1793, the Austrians seized, on the Lake of Chiavenna, the French Plenipotentiaries accredited to Switzerland and Naples. CLXXIV. It has been deemed right to mention these instances of the practice of nations, but the sound rules which ought to govern this question appear to be : — 1. That, in time of peace, the ambassador is of right invio- lable in his transit through a third country, but cannot claim the privileges of exterritoriality as a matter of tacit compact, though they would probably be accorded to him by the courts of all nations — and to ambassadors to a Congress they are accorded. The diplomatic agents of foreign powers at Frank- fort-on-the-jMaine were allowed the same privileges, on their transit, as the members of the German .Confederation (o). 2. That, in time of war, he cannot be secure from imprison- ment without a previously obtained permission to pass through the territory ; but that his life can in no case be taken, un- less, indeed, he actually exercises hostilities in the country through which he passes. (n) Grotkis says, 1. ii. c. xviii. 5, 1 : " Non pertinet ergo lisec lex ad eos per quorum iines, non nccepta venia, transeunt legati, nam siquidem ad hostes eorum sunt, aut ab hostibus veniunt, aut alioqui liostilia moliuntur, interfici etiam poteriint . . . multoque magis vineiri.^' It is, however, impossible to defend the former proposition, and it is certainly not a prin- ciple of the existing International Law. Vattel, 1. iv. c. vii. =. 84 : " Les autrea, sur les ten-es de qui il pa^se, ne peuvent lui refuser les ^gards que miJrite le ministre d'un souverain, et que les nations se doivent rSciproquement ; ils lui doivent surtout une entiere surety." Merlin, ib. s. iv. s. v. art. 12. Whe-atmt., i. 269 : " He is entitled to respect and protection, though not invested with all the privileges and immunities which he enjoys within the dominions of the sovereign to whom he is sent." Miruss, S.365. llynkershoek, De. F. L. c. ix. Kliiber, s. 176: "Perscinliehe S/c/j^'/fCTV ist das wii'«(7es^c worauf alsdaun der Gesandte Anspruch zu raachen hat." EMBASSY EXTERRITORIALITY PERSONALITY. 2 1 1 CLXXV. It is a melancholy reflection, that the opinion of Cicero should be in advance of modern and Christian civi- lisation on this point : " Legatorum jus divino humanoque " vallatum prsesidio, cujus tam sanctum et venerabile nomen " esse debet, ut non solum inter sociorum jura, sed etiam et " hostium tela, incolume versatur " (b). The true International rule would be, that the ambassador should be allowed, in all cases, the jus transitus innoxii. This, though Bynkershoek (c) endeavours to misunderstand it, was clearly the law of Holland at the beginning of the eighteenth century. The Mexicans are said to have adopted a similar prin- ciple of law; their practice was to mark out a certain route, out of which it was not lawful for the hostile ambassador to deviate. It is well remarked by Zouch, that both the State which sends the ambassador, and that to which he is sent, are injured by harm or insult inflicted upon him by a third country {d). (b) In Verrem, iii. (c) De F. L. Of. Merlin, Ministre puhlin, s. v. art. 12. Bynhershoeh, indeed, admits it at first : " Benigna ordinum erga legates voluntas; viilgo alioquin dici solet, jus legationis non valere nisi inter utrumque principem, qui mittit legates et ad quem missi suntj csetei-e privates e.'sse." — C. ix. ((f) De Judmo inter Oenten, p. 2, s. 4, s. 18. Fodix, Droit int. priv. p. 279, contains the enactments in various municipal codes respecting the treatment and protection of ambassadors. p 2 212 INTERNATIONAL LAW. CHAPTER VIII. EMBASSY EXTERRITORIALITY CIVIL JURISDICTION. CLXXVI. We have now to consider the exemption of the ambassador from the jurisdiction of the civil tribunals of the country to which he is accredited. With respect to this sub- ject, the privileges of Exterritoriality have been estabHshed by the universal consent and custom of all civilised nations, in order to secure the sanctity of the ambassador : they have been thrown up, from time to time, as outworks to the citadel. The presumption of law, both from the length of the usage and the reason of the thing [testataet prasumpta mens gentium), is so strong that, unless due notification of the intention to depart from the established custom had been given, the am- bassador would unquestionably be entitled to demand the enjoyment of the exterritorial privileges ordinarily incident to his station. If, in an evil hour, for its own welfare, such due notification had been given by any State, and nevertheless an ambassador, which is a most improbable hypothesis, had been accredited to it, he would not be entitled to claim, as matters strictijuris, those privileges the denial of which had formed the subject of the notification. CLXXVII. This proposition, however, must be qualified by two important reservations : — 1. It is not competent to a State, by any notification, under the pretext of curtailing exterritorial privileges, to deprive an ambassador of those privileges which are essential to secure performance of his functions, such, for instance, as appertains to the inviolability of his person. 2. A State so narrow-minded and ill-advised as to refuse the customary exterritorial privileges to the representative of EMBASSY — EXTEllEITORIALITY — PERSONALITY, 213 another State, must take care to act in this matter im- partially towards all nations. The nation unfavourably dis- tinguished from others by conduct involving a departure from long usage of the civilised world, would be entitled to consider such unfavourable distinction as a just cause of war. It is, indeed, not to be imagined for an instant that any other nation would accept this invidious distinction. She would know that, however nominally in her favour, it was really to her detriment, as a member of that community, a part of which cannot be injured without endangering the welfare of the whole. CLXXVIII. Nevertheless, the exemption of the ambas- sador, his family, and his suite from the jurisdiction of the civil as well as the criminal tribunals of the country in which he was resident, is not absolutely necessary for the preserva- tion of the inviolability of the ambassador. " Persona," Bynkershoek truly remarks (a),"quantumvis sancta,sola in jus " vocation e non viola tur." The Koman Law rightly defined violence, when it said, ''vis est et tunc, quotiens quis, id, " quod deberi sibi putat, non per judicem reposcit" (5). The Priests, the Vestal Virgins, the Tribunes of the People, were sacred and inviolable ; but they were amenable to the civil courts of law. The Pontifex was exempt, but only while he was employed in the performance of his holy functions. The ambassador was not, by the reason of the thing (c), therefore exempt from the jurisdiction of the civil courts, which might be so exercised as not to infringe on his inviolability. CLXXIX. When it had become a custom of universal ob- servance among nations (^placuisse gentibus ut communis mos) {d) that the ambassadorial representative should be considered. (a) Bynh. Be F. L. c. v. (5) Dig. 1. iv. t. 2, s. 12 : " Csesar dixit : tu vim putas esse solum si homines vulaerentur? vis est," &c. (c) Bynh. Be F. L. c. vii, c. viii. (d) Orotius, iv. 5. 214 INTERNATIONAL LAW. " Jictione quadam," in the presence itself of the august Prin- cipal, the advance was not difficult to another usage, which, "Jictione simili," considered the representative as being " quasi extra territorium." He was a foreigner, and therefore, according to Bynkers- hoek (e) and other eminent civilians, not amenable to the civil tribunal, except by arrest ; and, as an ambassador, he was exempt from arrest. He therefore remained the subject of the power which commissioned liim ; his domicil was un- changed. CLXXX. It was a further extension of the fiction of Exterritoriality to render the ambassador's personal property exempt from arrest ; this was little more than an application to ambassadors of the rule generally adopted by nations with respect to private foreigners, that their personal effects were considered, as much as their persons, to belong to their domicil. It has not yet been, and probably never ivill be, extended to real proj^erty, if an ambassador should happen to possess any in the country of his mission. The territorial possession is in no way attached to the character of the ambassador. The fiction of Exterritoriality cannot be applied to immoveable possessions, and there is no doubt that they, with their inci- dents, remain subject to the jurisdiction (^forum reale) of the country in which they are situate (/). The only question, in (e) De F. L. c. v. c. viii. (/) Vattd, 1. iv. c. viii. sa. 114, 115. Miruss, a. 343. Bynk. De F. L. c. xvi. : " In rem actions legatos conveniri posse, ubi degunt, ubique I'eoeptum esse, et neminem, qui vel prolixe legates defendit, contradicere . . . idque ideo, quia res ipsa convenitur, neque aliterlega- tus quam possessor rei, cujus possessio cum probanda sit (1. 9, if. de Eei Aindic.) Tix. aliter probari poterit, quam ubi res est. Et hoc quidem in flinch, qui vindicatur, dubium nou est, contra quam in re, leg;ationis causa hue transducta, vel empta, equo forte," &c. '•' Si cet envoys possede des bieus fonds dans ce pays, il y est justi- ciable des tribimaux pour toutes les afiiiires qui concernent ses propriete's, siiivaut la comp(,'tcuce qu'etablit le droit civil." — De Garden, Traite com- pld, 1. ii. 144. EMBASSY EXTEERITOEIALITY PARTICULAR CASES. 215 such a case, would be the proper way of serving the ambassador with notice of such an action. It has been said that, techni- cally speaking, notice ought to be served upon his domicil, i.e., his residence in his own country ; but Bynkershoek {g) justly observes that a letter is at once the most courteous and most effectual way of apprising him of his interest in the legal proceedings. From this rule with regard to real property is to be ex- empted the actual dwelling-house of the ambassador (A), which is intimately connected with his personal inviolability. CLXXXI. There are some exceptions, moreover, to the privilege respecting personal property, viz : — 1. When the ambassador becomes a trader or a merchant in the country to which he is sent, the property embarked by him, or accruing to him, in this capacity, is liable to seizure and condemnation, at the instance of creditors, in the same manner as the property of any other trader or merchant (i). It has been ruled in England that a public minister of a foreign State accredited to and received by the Sovereign of this country, having no real property in England, and having done nothing to disentitle him to the general privi- leges of such public minister, cannot, while he remaias such public minister, be sued against his will, in this country, in (jj) De F. L. c. xvi. : "Igitur demus lioc legato, ut ejus honori, quam fieri potest maxime, consulatur, ut et liunc recta in jus vocemus per epis- tolam, non per ambages, mittendam ad locum pristinse habitationis, sed ubi nunc est/' &c. (/»■) Vattel, 1. iv. c. viii. s. 115. Wheaton, i. p. 279. Synk. De F. L. c. xiv. De Legato Mcrcatore. lb. c. xvi. : " Quibus ex causis legatus possit conveiiiri in loco, ubi lega- tione fungitur, et quemadmodum tunc faoienda sit judicii denunciatio." Vattel, 1. iv. c. viii.s. 114. Merlin, ib. s. v., art. vi, vii. MaHens, s. 217. Wheaton, i. p. 279. Kliiber, s. 210. (i) Vicle post. Taylor v. Best and another, 1854, 23 Laiv Journal, N. S. C. P. 89. 216 INTERNATIONAL LAW. aa action ; although such action may arise out of commercial transactions by him here, and although neither his person nor his goods are touched by the suit (A). Although the courts in this country cannot make an order asxainst an ambassador who does not submit himself to the jurisdiction, yet the Court of Chancery will restrain a third party from handing over to him a fund the right to v.'hich is in dispute, notwithstanding his title to the fund may be absolute at law (Z). There may sometimes be difficulty in deciding whether the property belong to him in the capacity of ambassador or merchant, and in all cases of reasonable doubt the am- bassador should be allowed the benefit of it. The law was correctly laid down on this subject of the merchant-am- bassador by the Dutch Tribunal, in 1720-1, when the Envoy Extraordinary of the Duke of Holstein was sued by his creditors for mercantile debts contracted by him ; and the Courts at the Hague granted a decree of arrest and citation against him. The ai-rest was to operate on all goods, money, and effects within the jurisdiction of the tribunal, with the exception of the moveables, equipages, and other things belonging to him in his character of ambassador. By " money " {Penningen—deniers — pecunia numerata), Bynkershoek says the Court clearly intended to include only money embarked in the particular mercantile speculations; and he adds, that as it must be always difficult to distinguish this money from that which belongs to the ambassador for other purposes, it would be wiser and fairer to omit money, and include it among the things necessarily appertaining to the office of legation (jn). (k) Magdalena Steam Navigation Co. v. Martin, 2 HI. & HI. 94. (a.B. 18/59.) Q) Gladstone v. 3Itmtrus Bey, 9 Jm: X. S. 71 (a.d. 1863). (>n) Ihid. c. xvi. : " Fortasse Eequius melius erit, quia in causa dubia, ut lisEC ent, pro legato solemus respondere, omnem pecuuiam arresto oxiuiei-e, et hanc referre inter res ad obeundam legationem cum maxime ]jccossaria.s." Ibid. u. xiv.; "Et mihi hujus libelli scribendi occasionem prsebuit." AMBASSADOKS— MEECHANT-AMBASSADOES. 217 This instance is memorablej not merely on account of the correct enunciation of the law to which it gave rise, but also because it furnished Bynkershoek with the occasion of writing his excellent treatise " De Foro Legatorum." CLXXXII. In truth, every State ought, by expressly for- bidding their ambassadors to combine engagements in private trade or commerce with the sacred duty of representation, to prevent any question of the kind from ever arising. The Roman law on this point deserves to be imitated : " Enim qui " legatione fungitur, neque alienis neque propriis negotiis se " interponere debeat " (w). It would, however, be perhaps difficult and harsh to pre- vent the ambassador from acting in the fiduciary character of trustee or testamentary executor ; any property accruing to him in these capacities is not within the shelter of exterritorial privilege. CLXXXTII. 2. Another exception is furnished by the case of the ambassador who becomes voluntarily a plaintiff in a cause, which act implies the consent of his master. The plaintiff-ambassador makes himself liable to the counter- demands (reconventiones), which are a mode of defence, and to condemnation in costs, if the suit fail (o). The Roman law says justly, " Qui non cogitur in aliquo " loco judicium pati, si ipse ibi agit, cogitur excipere actiones " et ad eundem judicem mitti" (jp). (to) Dig. De Legationibus, 1. 60. t. vii. 8. (o) Bynh. ib. xvi. Merlin, ib. v. art.x. (p) Dig. 1. v. t. i. 22 : " De judiciis et ubi quisque agere vel conveniri debeat." Bynh. ib. xvi. : " Alia etiam swai, etiamsi legates non subditos dicamus, in quibus forum nostrum, non recte subterfugerint, quin et in quibus potestas qusedam in eos exerceri potent, sed ejusmodi potestas, quae nostros cives magia defendat, quam legatos cogat. Multis aucti sunt privilegiis, ut ipsi commodius degant, nee quicquam turbentur iu obeunda legatione, non ut, vi illata, alios turbent, et res eorum auferant. Quod si fiat, fortasse recte utemur lis actionibus, quae interdictionum naturam magis sapiunt, quam jussionuni," &c. 218 INTERNATIONAL LAW. On the other hand, if the suit succeed, and the defendant prosecute an appeal, which is also a mode of defence, the plaintiff-ambassador cannot decline the jurisdiction of the Superior Court. CLXXXIV. 3. There is also a kind of defensive yrciaAic- tion, so to speak, which may be exercised over ambassadors as over other foreigners — a jurisdiction which has for its object to prevent the ambassador from doing some civil injury; namely, the jurisdiction of interdict, according to the Roman, and of injunction according to the English Law. Such [een Mandament van Complainte an een Mandament van Sauoe- (jarde) appears to have been exercised by the Dutch tri- bunal, in 1644, against the Swedish Ambassador. CLXXXV. So Albericus Gentilis and Bynkershoek {q) are both of opinion, that the ambassador might, on account of the dangerous condition of his house, or for other causes threatening his neighbour with injury, be subject to that class of actions (r) familiar to the Roman Law, through which the Praetor administered an immediate temporary remedy against an impending wrong. It is clear that the Provincial Legates of Rome were not exempt from this kind of jurisdiction (s) ; and both the authorities above mentioned conceive that the reason of the thing renders the principle of that law ap- plicable in this particular to modern ambassadors ( t\ CLXXXVI. With these exceptions, all civilised nations unanimously accord to ambassadors complete exemption from the civil jurisdiction of the country in which they reside. These exterritorial privileges are also extended, by positive International Law, as much as the rights of inviolability, to (y) Byiili. ib. xvi. (r) lyig, 1. 39, t. 1 : " De operis novi nunciatione." Ib. t. 2 : " De damno infecto et de suggrundiis et protectionibus." Ih. t. 3 : "De aqua et aquue pluvise arcendse." (s) I)iy. 1. V. t. 1, 28 : " ^Edium nomine legatiis damniinfecti promittere debet aut vicinum admitteie iu possessionem." ((") " Explorala ratio tacit jus istud ab mnjorihus legatis commune." — Aib. Gent. c. xvi. De coiUraciibtut legatonim. AMBASSADORS — SUITE. 219 the family, and especially to the wife, of the ambassador. She is entitled to ceremonial honours, according to the usage of courts, and any afiront oiFered to her is a special indignity to the ambassador : the same remark applies to his family (m). It is not competent to any member of the family to waive this privilege (x). His suite or train {comites) are also entitled to these privileges, a violation of which in theii* persons affects the honour, though in a less degree, of their chief. In this suite, couriers employed in carrying despatches are of course included. CLXXXVII. As the privilege is accorded to the suite on account of the ambassador, and not on account of his Sovereign, it may be waived by the former; and it was waived by the ambassadors at the Congresses of Miinster and Nimeguen (?/). But it cannot be waived in the case of any subordinate officer of his household appointed by the Sovereign himself. (m) Vattel, 1. iv. o. ix. 121 : " L'^pouse de rambassadeur lui estintime- ment unie, et lui appartient plus particulierement que toute autre peraonne de sa maison. Aussi partioipe-t-elle a son indtJpendance et a son inviola- bility. On lid rend meme des honneurs distingu^s, et qui ne pourraient lui etre refuses, a un certain point, sans faire affront a I'ambassadeux." The cliildren of an ambassador are holden to be subjects of the Prince whom he represents, although born under the protection of, and in the dominions of, a foreign State {Inglis y. Trustees of the Sailors' Snuy Harbour, 3 Peters (Amer.) Sep. 155. (x) Gazette des Trib. No. 4982, 21 aout, 1841. Case of La Baronne de Pappenheim. Grotius, ib. iv. s. 3. Wicquefort, i. s. 28. Bynh. ib. c. xv. De comitibus hgatorum. " Ex consuetudine, quas nunc vicit inter gentes, veri legati (non provinciales et munioipales quales fere Romse) domum revocant, tam in contractibus quam delictis. Igitur in utrisque etiam domum revocabunt comites, sive majores, sive minores, nam et lixae, scoparii, stabularii sequuntur forum legati, ut quicunque famulus sequitur forum heri sui." According to the Roman Law, the domestics of the legatus were justiciable at Rome, as he was. Vattel, 1. iv. u. ix. s. 120. Wheaton, i. p. 277. ((/) Wicquefort, i. s. 28, pp. 423, 424. 220 INTERNATIONAL LAW. CLXXXVIII. The Secretary of Legation being so ap- pointed, is especially, and of his own right, entitled to these privileges {z), and to a certain right, his appointment being notified to the Minister of Foreign Affairs. The Secretary to the Embassy, though unfavourably distinguished from the other in these particulars, has been usually considered as an official person distinct from the general suite (a). Difficulties have arisen from persons, perhaps not subjects of the State from which the embassy is sent, claiming, without sufficient warranty, to belong to it. It has therefore been enacted by the municipal laws of some countries, and it ought to be the usage of all, to require a list of the persons composing the suite to be delivered to the Minister for Foreign Affairs, or other proper officer (b).. CLXXXIX. In England especial provision has been made concerning the arrest of foreign ambassadors, or other foreign public ministers, and their domestics, or domestic servants, by the Statute 7th Anne, c. 12, which makes any process against them, or their goods and chattels, altogether void ; and provides, that the persons prosecuting, soKciting, or executing such process, shall be deemed violators of the Law of Nations, and disturbers of the public repose, and shall suffer such penalties and corporal punishment as the Lord Chancellor and the two Chief Justices, or any two of them, shall think fit. But no trader within the description of the Bankrupt Laws, who shall be in the service of any (s) Ex parte Cabrera, 1 Washington (American') C. C. 232. Respuhliea v. Be Longchamps, 1 Dallas (Atnerican) Hep. 117 ; vide ante p. 208. (a) Traitd eomplet, Sj-c, ii. p. 21. When attached to Papal legations they are styled auditeurs de nonc-iature. TlHieaton, ib. Vattel, ib. (b) W/ieaton, ib. Bynli. ib. : " Quum autem ea res nonnunquam turhas dederit, optimo exemplo in quibusdam aulis olim receptum fuit, ut legatus teneretur ex- hibere nomenclaturam comitum suonim, sed pessimo exemplo id nunc ubique gentium negligitur." AMBASSADOES — SUITE. 221 ambassador, or public minister, is to be privileged or pro- tected by this Act; nor is anyone to be punished for arresting an ambassador's servant, unless the name of such servant be registered in the office of one of the principal Secretaries of State, and by him transmitted to the Sheriffs of London and Middlesex, or their undersheriffs or depu- ties (c). This Act itself was, as Lord Chief Justice Abbott re- marked, " only declaratory and in confirmation of the Com- " mon Law, It must, therefore, be construed according " to the Common Law, of which the Law of Nations must " be deemed a part " {d). CXC. There have been various decisions on the subject of this statute. It has been held to be insufficient to claim the discharge of a defendant — as being servant to the Minister of the Prince Bishop of Liege ; and that it was necessary to learn in what manner the Minister was accredited (e). " Certainly," said Lord Mansfield, in this case, " he was " not ambassador, which is the first rank. Envoy, indeed, " is a second class ; but he is not shown to be even an " envoy ; he was called minister, it is true, but minister " alone is an equivocal term." And Lord Mansfield also said that the Law of Nations does not take in Consuls (/) or agents of commerce, although received as such by the Courts at which they are employed; and this case was expressly determined in an elaborate judgment in the case of Viveash v. Becker {g). The servant need not lie in the house, although he must do some service there {h). He must be a real, not a nominal (c) JRiissdl on Crimes, (ed. Greaves, 1843), -vol. i. p. 754. (rf) Novella v. Toogood, 1 Barmvell and Cresswell's Rep. 562 (a.b. 1823). (e) Heathfleld v. Chilton, 4 Burrows, 2015. (/) Vide post, Chapter on Consttls, in which these decisions are further mentioned. {g) 3 Maule 8f Selwyn, 284. (A) Evans v. Higgs, Strange, 797. Widinore \. Alvarez, cited Md. 222 INTERNATIONAL LAW. servant (i). Many cases arose upon claims of privilege by persons as servants of the Count Haslang, the Bavarian Ambassador, of whom it was said that, although a minister of a very humble rank, he had more domestics registered than the ambassadors of the most potent powers in Europe. In the case of Masters v. Manhy (K), application was made to the Court for the discharge of the defendant, as being the ambassador's messenger, and it was sworn that he sometimes executed service as such. The defendant was a land waiter at the Custom House, and the Court were of opinion that he could never be deemed a hona-jide domestic. In Triquet v. Bath (I), the privilege was allowed to the defendant, as English secretary of the ambassador, the defendant's affidavits being so framed that everything was sworn that in absolute strictness could be required, to bring him within the description of a domestic servant ; and the Court held that it was sufficient if an actual hona-Jide service were proved ; and that if such a service were proved, they must not, upon bare suspicion, suppose it to have been merely colourable and collusive. In Lochicood Y. Coyscjarne {m), the claim of privilege was disallowed to the defendant as the ambassador's physician, as not being a case oi bona-Jide service; and the Court said, it would be of very bad consequence if protections should be set up for sale, or made use of merely for the sake of screen- ing people from their just debts. In Darling v. Atkins (n) the privilege was disallowed to the ambassador's English secretary, he being purser of a man-of-war, which was held to be an office incompatible with the situation of secretary to the ambassador. In this case it was observed, that the ambassador's secretary is privileged, the statute being only explanatory of the Law of Nations, and the words («') Crosxe V. Tfilho\ S Miirlmi Jieports, Caxc 200 {fempm-e Gi'u. I,). (k) 1 Bi(rrow«, 401 . (0 3 Biiri-owx, 1478. (m) .*? Utirrmrs, ]<)7f). (") 3 IT'ihmi's Iii^pnrt.i, f,n. AMBASSADORS. 223 " domestic " and " domestic servant " are only by way of example (o). " The statute only requires the names of the " persons privileged to be registered, for the purpose of " proceeding against the parties criminally, for a violation " of the Act, and not for the purpose of exemption from " arrest " (p). In a later case it was decided, that though a foreign minister does not lose his privilege of exemption of suit by trading in this country, his domestic servants do, under the limitation contained in the statute on which we have been commenting (g-). CXCI. In 1772, the Baron de Wrech, Minister Plenipo- tentiary of the Landgrave of Hesse-Cassel at the Court of Paris, was recalled from his embassy. He was about to quit Paris without paying the debts which he had contracted there. His creditors, especially a Marquis de Bezons, be- sought the Minister for Foreign Affairs not to grant the Baron his passport. It was accordingly refused. All the corps diplomatique at Paris remonstrated against this act as a violation of International Law. The French Minister, le Due d'Aiffuillon, replied in an elaborate memoir, drawn up by AI. Pfeffel, upon the Rights of Ambassadors; defended, upon the authority of Grotius and Bynkershoek, the right of using that species of con- straint against an ambassador which did not interfere with the exercise of his functions. He further appealed to the practice of other States, as warranting the step which had been taken, and especially to that of Hesse-Cassel itself, which had imprisoned a Dutch ambassador, in order to compel him to render an account of a charitable institution, of which he had been the administrator. It was admitted that this attack on the person of an ambassador was in- defensible, but it was added that Holland had not denied the jurisdiction of Hesse-Cassel in the matter. (o) Hopkins v. De Mobeck, .3 Dtirnford and East's RopnrU. (p) Ibid (q) Vide pod, Tat/lor v. Dest, 23 Law Journal, X.S.C'.P. p. 89. 224 INTERNATIONAL LA^V. The Landgrave was compelled to make an arrangement with the creditors of the Baron de Wrech, before that minister could obtain his passport (r). If this had been a proceeding between the States of Hesse-Cassel and Holland, on the principle of reciprocity of practice, it might have been justified, but, under the cir- cumstances, it was a direct infringement upon the general principles of International Law. CXCII. The Courts of Justice in England have adhered to the proper rule of law upon this subject. Any apparent exceptions will be found to range themselves under that class of cases in which the ambassador has either been a plaintiff in a suit, or engaged as a merchant or trader in the commerce of the country to which he has been delegated. In the year 1694, a case in the High Court of Chancery, intituled Pilkington v. Stanhope (s), was decided as follows : ' ' The plaintiiF having brought a bill, to redeem an old " mortgage, against the defendant, who was then an Amhas- " nador at the Court of Spain, the defendant obtained an " order that all proceedings should cease until his return " from his embassy. The plaintiff moved to discharge the " order ; and upon debate it was agreed a protection lies " for an ambassador, quia profecturus, or qvia moraturus, " and may at law cast an essoin for a year and a day, and " may afterwards renew it, if the occasion continues.'' The Court ordered a stay of proceedings for a year and a day from this time, unless the defendant should sooner return into England. CXCIII. In 1854, an action {t) was brought in the Court of Common Pleas against the Secretary of Legation of the King of the BelgianSj a Monsieur Drouet, as well as other Directors of a Society formed in Belgium and London for working the Koyal Nassau Sulphate of Barytes Mines. (?•) Cmises c&ebres du Droit de.s Geuf;, par De ^Harlenn, t. ii. p. 110. (s) Vernon^s Cases, vol ii. p. .317. (t) Taylor v. Best, 2.3 Law Journal, N.S.C'.P. p. 89. AMBASSADORS — CASE OF M. DROUET. 225 The action was to recover deposits paid by the plaintiff on shares in the above-mentioned society. Before the writ issued, in June 1853, M. Drouet, who was Secretary of Legation of the King of the Belgians, instructed his attorney to write to the attorney for the plaintiff, to ask if a writ was to be issued, and if it was, to direct that it should be sent to him; and after the writ was issued, M. Drouet directed his attorney to enter an appearance, which he did accordingly. M. Drouet was abroad from June till the beginning of December, on the duties of his office, and in the meantime the action proceeded. M. Drouet pleaded the general issue by his attorney. Notice of trial was given for the 20th of December, and a special jury was obtained on the application of M. Drouet. On M. Drouet's return to England, in December, his attorney took out a summons to stay all proceedings, or to strike out his name from the proceedings in the action, on the ground of his pri- vilege as a public minister. The summons was heard before Talfourd J., who ordered proceedings to be stayed till the fifth day of next term. ...... Lord Chief Justice Jervis said : " There is no doubt " that the defendant, M. Drouet, fills the office of a public " minister, such as the privilege contended for will attach " to ; and I think it equally clear that, if the privilege do " attach, as it undoubtedly does attach to the character of " minister, it is not, in the case of a minister, interfered " with or abandoned by the circumstance of trading, as it " would be if the claim were set up in respect of the privi- " leges of a servant of the ambassador, under the statute of " Anne (m). If an ambassador or minister violate the " character in which he is delegated to this country, by " entering into commercial transactions, that raises a " question between the country to which he is sent and the " country from which he is sent ; but he does not thereby " lose any privilege to which he may be entitled, the privi- («) Vide post. VOL. II. Q 226 INTERNATIONAL LAW. " lege being a general privilege, and the limitation attached " to the privilegej by reason of trading, being confined by " the statute of Anne to the case of servants of the ambas- " sador, who may lose the privilege. .... " Admitting, therefore, that the applicant in this case is a " person entitled to the general privilege, which he has not " lost by any trading transactions into which he may have " entered ; if such be established to the satisfaction of the " Court, the question is, whether he is entitled, under all " the circumstances of the case, to the privilege which he " now claims. Now, although it is admitted that no pro- " cess against person or goods can be available against the " person or goods of an ambassador or minister, no case has " been cited to show that an application like this, to stay " all the proceedings in an action against such a person, is " available in the Courts of this country. On the contrary, " it appears, on examination, that in the case of servants, " and the same principle must apply with reference to " ministers, the practice has been not to stay all proceedings, " but to relieve the person of the servant from the vexation " of service of process, or of bail, and the applications have " hitherto been, as far as I can understand them, where the " party has been arrested, to discharge him from the arrest " on entering a common appearance. .... " It is contended, and perhaps it is undoubted, that an am- " bassador or minister has a privilege from suit, or, at all " events, from such suits as ultimately result in the taking " of his person, or of his goods necessary for his state or " comfort ; and that he cannot be compelled, in invitum or " involuntarily, to enter into litigation in a country in which " he is resident ; but it is admitted by all the foreign jurists, " that where suits can be founded without attacking the " personal liberty or comfort, or interfering with the per- " sonal privileges of the individual, they may proceed." Mr. Justice Maule said : " I think, on the ground that " M. Drouet has appeared in this action, and allowed it to " go through certain stages, this application ought to fail. » EMBASSY — EXTEEEITOKIALITY. 227 " It is a grave question whether an ambassador, or public " minister, which M. Drouet undoubtedly is, is so far pro- " tected as not to be liable in any manner, supposing him " to object to the jurisdiction. That question is not decided " by any legal determination in this country, nor as far as " judicial determinations go, do we find it so determined " elsewhere. With respect to mere cases in which a special " application was made under the 5th section of the statute " of Anne, they were cases in which servants of am- " bassadors, who had been sued and arrested, were dis- " charged on common bail. Now, there is a great distinction " between an ambassador and the domestic servant of an " ambassador. The ambassador has a privilege, and the " privilege of his domestic servant is not the privilege of the " servant himself, but of the ambassador, and is based on the " ground that the arrest of the domestic servant might inter- " fere with the comfort or state of the ambassador. Where " these are not interfered with at all, the ambassador is not " interfered with by the suit ; and the servant has no privi- " lege except that which arises from the privilege of the " ambassador. It is an important point, and one fit to be " very gravely considered when it fairly arises, whether an " ambassador is liable to be sued by process not affecting " his person or his goods ; whether by such a process he ". can be brought, unwillingly, into the Courts of this " country, and have his rights determined on, perhaps even " so as to interfere with his comfort. A man could not " stand by and without care allow a suit to be determined " on which the decision would be binding upon him ; and, " therefore, it may well be questioned whether the privi- " lege of the ambassador is not as extensive as the text of " Blackstone (a-) alleges it to be." CXCIV. In some countries the immunity of the am- bassador has not been left to rest upon the general recog- nition of International Law by the Municipal Law, but has been made the subject of express enactment. (t) Vi(k post, Q 2 228 INTERNATIONAL LAW. *• In England, Blackstone observes (y) that so few cases (if any) had arisen, wherein the privilege was either claimed or disputed, even with regard to civil suits, that our law- books are (in general) quite silent upon it previous to the reign of Qiieen Anne, when an ambassador from Peter the Great, Czar of Muscovy, was actually arrested and taken out of his coach, in London (z), for a debt of 501., which he had there contracted. Instead of applying to be discharged upon his privilege, he gave bail to' the action, and the next day complained to the Queen. The persons who were con- cerned in the arrest were examined before the Privy Council, of which the Lord Chief Justice Holt was at the same time sworn a member (a), and seventeen were com- mitted to prison (5), most of whom were prosecuted by in- formation in the Court of Queen's Bench, at the suit of the Attorney-General (c), and at their trial before the Lord Chief Justice were convicted of the facts by the jury (d) ; reserving the question of law, how far those facts were criminal, to be afterwards argued before the judges ; which question was never determined. In the meantime, the Czar resented this affront very highly, and demanded that the Sheriff of Middlesex, and all others concerned in the arrest, should be punished with instant death (e). But the Queen directed her Secretary to inform him, " that she could in- " flict no punishment upon any the meanest of her subjects, " unless warranted by the law of the land ; and therefore " was persuaded that he would not insist upon im- " possibilities " (f). To satisfy, however, the clamours of the foreign ministers (who made it a common cause), as well as to appease the wrath of Peter, a bill was brought into (y) Stephens' (Blackstone' s) Comm. ii. pp. 500-S02 (ed. 1868). (k) July 21, 1708 ; Bayer's Annals of Queen Anne, {a) July 25, 1708 ; ibid. (b) July 25 and 29, 1708 ; ibid. (c) October 23, 1708 ; ibid. (d) February 14, 1708 ; ibid. (e) September 17, 1708; ibid. If) January 11, 1708; ibid; Mod. Uii. Hist. xxxv. 454. ^EMBASSY— EXTEREITOEIALITY. 229 Parliament (ff), and afterwards passed into a law (h), to prevent and punish such outrageous insolence for the future. And with a copy of this Act elegantly engrossed and illu- minated, accompanied by a letter from the Queen, an Ambassador Extraordinary (i) was commissioned to appear at Moscow (k), who declared, " that though her Majesty could " not inflict such a punishment as was required, because of " the defect in that particular of the former established '• constitutions of her kingdom, yet, with the unanimous " consent of the Parliament, she had caused a new Act to " be passed, to serve as a law for the future." This humiliat- ing step was accepted as a full satisfaction by the Czar ; and the oflFenders, at his request, were discharged from all further prosecution (I). CXCV. The North American United States passed a statute (April 30, 1790), containing provisions similar to those of the statute of Anne, which has just been mentioned, and the decisions of the tribunals of the United States have been pretty much in accordance with those of the courts of justice in England (m). CXCVI. In France (n) before 1789, the ambassadorial privileges were not sanctioned by any law, but rested on the recognition of usage. In that year the Constituent Assembly, in answer to an address presented to them by the corps diplomatique, declared the inviolability of these im- munities. In 1794 (3rd March) the National Convention decreed that all questions relating to these immunities should be referred to the Committee of Public Safety. At the present time all complaints upon this subject are (g) Com. Journ. December 23, 1708. (A) April 21, 1709 ; Soi/er, ibid. (i) Mr. Whitworth. {h) January 8, 1709 ; Boyer, ibid. (I) Vide ante, decisions on cases aiising under this statute. (to) See United States v. Sand, 2 Washington's {America) C. CRep. 435. Diipont V. Pichon, 4 Dallas {American) Rep. 321. {n) Fceli.v, 1. ii- t. ii. c. ii. s. 219. 230 INTERNATIONAL LAW. addressed to the Minister for Foreign Affairs. In the projet of the Code Civil, there followed upon the third article an exceptional provision in these words : — " Les etrangers " revetus d'un caractere representatif de leur nation, en " qualite d'ambassadeurs, de ministres, d'envoyes, ou sous " quelque autre denomination que ce soit, ne seront point " traduits, ni en matiere civile, ni en matiere criminelle, " devant les tribuuaux de France. II en sera de meme des " etrangers qui composent leur famiUe ou qui seront de " leur suite." But this article was rejected by the Conseil cTEtat, upon a suggestion of the elder Portalis that " ce '■ qui regarde les ambassadeurs appartient an droit des gens ; " nous n'avons point a nous en occuper dans une loi qui " n'est que de regime interieur " (o). Therefore the 14th article of the Code only pro\'ides for obligations contracted between a French subject and an individual foreigner ; nevertheless the provision in the projet is considered by the legal authorities in France as, by usage at least, a part of the law of the land. CXCVII. Spain possesses various laws upon this sub- ject; one relative to the immunity of ambassadors from taxes, another relative to their debts, by which it should seem that proceedings may be taken before the Spanish tribunals against ambassadors for debts contracted during the time of their mission, but not on account of antecedent obligations, a municipal regulation which is inconsistent with the principles of International Law upon this subject. Another law suppresses the right of asylum in the hotel, and another provides that only natives may represent the kingdom of Spain at Foreign Courts (p) CXC VIII. Portugal has a law of John IV. (5). renewed (0) Fodi^, ibid. ; Locre, Legislation civile, t. i. p. 580, Xo. 11 ; t. ii. p. 45, Xo. 21 ; le meme, Esprit du Code KapoUon, t. i. p. 210. Repertoire, 5° Ministre public, s. 5, s. 4, art. 3 (4* 6dit. t. viii. p. 2yl). (2>) Fali.r, 1 ii. t. ii. c. ii. s. '220. liecupiladon de Leyes, 1. ix. t. 31, 1. 4. Martens, C. C. t. ii. pp. 3o3. o'M\ 361, 362,304, (7) A.D. 1040-lOoU. EMBASSY— TAXES — DUTIES. 231 under John V., to the same effect as that of Spain, with respect to the debts and contracts of the ambassador. CXCIX. Russia has enacted that all disputes against any member of the Embassy must be transmitted to the Minister for Foreign Aifairs, and that no judgment can be put in force without the precincts of the hotel, except through the intervention of that minister; all persons attached to the Embassy and all foreign couriers are ex- empt from the obligation of being furnished with a Russian passport, and from being inspected by the custom-house officers. All members of the corps diplomatique are allowed to introduce their moveables free from duty, and to receive those which may be addressed to them during the first year of their residence in Russia upon the same terms (r). CC. With respect to the German Powers, Austria has enacted that all persons belonging to the Embassy shall enjoy the privileges conferred upon them by the principles of International Law and Public Treaties (s). The Bavarian Code provides that all persons enjoying ambassadorial rights are exempt from the ordinary juris- diction of the tribunals of the country (t). The Prussian Code enacts that all persons belonging to the embassy shall be entitled to those immunities which International Law and existing Treaties have conferred upon them ; that Prussian subjects, who with the per- mission of their Sovereign, have been accredited as ministers from Foreign Courts to the Court of Prussia, shall be ()•) La Hevue etrangh-e, t. i. ii. pp. 871, 555, 648. Fcelix, ibid. (s) Be PuttUngm, Die gesetzliche Behandlung der AmlUnder in Oester- reich, u. s. w., as. 52, 55, 116, 119. "Die Gesandten, die bitentlichen Geschaftstriig'er und die in ihren Diensten stehenden Personen, geniessen die in den offentlichen Vertragen gegriindeten Befreyungen." — AUgemeines hiirgerliches Gesetzbiich fur die gesammten Deutschen Erhldnder der Oesterreichischen Monarchie, s. 39. (t) 0. i. s. 11. 232 INTERNATIONAL LAW. subject, so far as their private aifairs are concerned, to the laws of Prussia ; that ambassadors accredited by Prussia to foreign courts, are justiciable by the laws of the place of the domicil which they last had, previously to entering upon the discharge of their diplomatic duties. It is further provided that no reigning German Prince or Ambassador shall be subject to arrest by any Prussian tribunal, unless there has been, a special reservation upon the subject made with re- spect to them previously to their reception at Court (m). CCI. The ancient States-General of the Netherlands made an edict to the effect that no persons attached to an Embassy, on their arrival or on their departure, or on their passage through the country, should be liable to be arrested, or to be proceeded against on account of any debts con- tracted therein. A similar law prevails in Denmark (x). ecu. Among the privileges which the usage of nations has imparted to the ambassador, and which are not derived from the reason of the thing, is the exemption of his person and his pei'sonalty from taxation. He is, moreover, gene- rally exempt from the payment of duties upon articles im- ported for the use of himself or of his family (y). CCIII. Different nations, however, adopt different regu- lations, both as to the amount of this free importation, and as to the time when it is permitted. Many nations limit it to a fixed sum during the continuance of the embassy. It has been holden, however, in England that the estate of an ambassador or attache to a legation, domiciled in this country, is not exempt from legacy duty. Such a fun&- (m) Allgemeines Landrecht fiir die Preassischen Staaten: EinleituBg, ss. 36, 37, 38, 39. F(£Ux, ibid, (.r) Faelix, ibid, ly) Wheaton, 1. 270. Heffters, s. 217. Merlin, ibid. s. v. '■). EMBASSY — LEGACY DUTY. 233 tionary does not by his appointment to an embassy to this country lose a domicil previously acquired here. A testator, whose domicil of origin was Portugal, came in 1818 to England, as agent to a wine company, and was so employed until 1833, and from that time to his death in 1859 resided ia England. In 1857 he was appointed, and contiaued to his death, an attache to the legation of the King of Portugal, in England, and in 1858, in respect of that appointment, he claimed and obtained exemption from assessed taxes. In a testamentary paper he stated that, as he was a foreigner, who always intended to return to his country, and was besides an attach^ to the legation of the King of Portugal, his projierty was not subject to legacy duty : — Held, that the testator acquired a domicil in this country, and did not lose it by the appointment of attache, and that his estate was liable to legacy duty (z). The Roman Law (a) compelled the legate to pay duty on articles which he brought with him, but allowed him an ex- emption upon articles procured " ex Romano solo " for the purpose of transmission to his own country. This immunity is never extended to — 1. Real property ; 2. To personalty unconnected with the ambassadorial character. 3. And very seldom, if ever, to tolls and postages ; and generally speaking, it is clear that this class of privileges cannot be considered (5) as resting on an unalterable basis. (z) The Attorney-General v. Kent and others, 31 i. J. N. S. p. 391. («) " A legatis gentium devotarum, ex his tantum speciebus quas de locis propriis unde conveniunt, hue deportant octavarii veotigal accipiant qnas vero ex Romano solo (quae sunt tamen lege concessse) ad propria deferunt, has haheant a preestatione immunes ac liberas." — Cod. 1. iv. t. 61, 8. (6) " Im Allgemeinen kann daher von einem feststellenden volker- rechtlichen Privilegium hinsichtlich dieses Punctes keine Rede seyn." — Jleffters, ibid. 234 INTERNATIONAL LAW. CCIV. The house, or as it is usually called, the hotel, of the ambassador is by universal consent inviolable, and inaccessible to the ordinary officers of justice or re- venue (c). The same remark applies to his carriage. Upon this valuable and necessary immunity was at one time grafted the monstrous and unnecessary abuse of what was called the Eight of Asylum. In other words, the hotel was to be a place of refuge for offenders against the law of the State in which it was situated. Bynkershoek (d) is clearly right in pronouncing that, whether common sense, the reason of the thing, or the end and object of embassies be considered, there is not even that faint colour of reason which the most absurd pretensions can generally put forth, to be alleged in favour of such a custom. History teems vdth examples of the evil consequences resulting from this absurd privilege, which was often extended from houses to whole districts and quarters of the town, as at Rome and Madrid (e). It is true that those States which have allowed this abuse (c) Wicquefort, 1. s. 28 : " La maison et les domestiques de Tamljas- sadeur sont inviolablea." — P. 414. Bynh. ibid. c. xxi. : "^des legati an prsebent asylum." Vattel, 1. iv. c. ix. s. 117 : " L'ind^pendance de Tambassadeur serait fort imparfaite, et sa surety mal Stablie, si la maison oii il loge ne jouissait d'lme entiere francbise, et si elle n'^tait pas inaccessible aux ministres ordinaires de la jitstice La maison d'tm ambassadeur doit etre a couyert de toute insulte sous la protection partiouliere des lois et du droit des gens: I'insulter, e'est se rendre coupable en vers I'^tat et envers toutes les nations." Merlin, ibid. v. 3. {d) " Omnia legatorum privilegia, quibus utuntur ex taoito gentium consensu, non alio fine compai'ata sunt, quam ut tuto, sine remora, sine impedimento cujusquam, officio suo fungantur. Possunt autem tuto fuugi, etiamsi facinorosos non recipiant, nee ocoultent, nee Principi, apud quern sunt, intervertant jurisdictionem, non in sui vel suorum, at tertii, ad se non pertinentis, gratiam. Sed ejusmodi bsec sunt, ut yix seriam disputa- tionem desiderent." — Bynk. ibid. (e) " The Polish Ambassador at Rome in 1680, the Spanish in 1682, the English in 1686, voluntarily renounced these exorbitant and mis- chievous privileges." — Miruss, s. 361. EMBASSY — EIGHT OF ASYLUM. 235 are bound to give notice of their intention to abolish it pre- viously to the reception of the ambassador (f). But it is also true that there can be no prescriptive right in any nation to demand a continuance of this obstacle to good order, justice, and peace, wholly unconnected as it is with the maintenance of the security or dignity of embassies. And every Govern- ment must agree with the wish of the learned Merlin (y), that such a nuisance should be universally abolished. No one can declare more strongly than Grotius that the jus asyli is no part juris gentium. " Ipse autem legatus an " jurisdictlonem habeat in familiam suam, et an jus asyli in " domo sua pro quibusvis eo confugientibus ex concessione " pendet ejus apud quem agit. Istud enim juris gentium non " est "(h). In 1726, the Duke of Ripperda, the First Minister of Philip v., took refuge in the hotel of Lord Stanhope, the English Ambassador at Madrid. The King asked for the opinion of the Council of Castille, the first tribunal in the kingdom, whether, without a violation of International Law, he had a right to take his subject Ripperda, accused of high- treason, by force, if other means were of no avail, from the hotel of the English Ambassador; — the answer was in the affirmative, and Ripperda was accordingly taken by force from the hotel, and his papers were seized at the same time. (f) Wicquefort, citing the instance of certain conspirators seized by the Venetian Government in the house of the French Ambassador, and the answer with lespect to it made by the Venetian Ambassador, that he would deliver up to justice any French rebels that took refuge in his hotel, adds : " On peut dire sur cet exemple, que, suivant le droit des gens, la maison de I'ambassadeur ne peut donner surety qu'a lui et a ses domes- tiques, et ne peut servir d'asyle aux strangers que du consentement du souverain du lieu, qui peut estendre ou restreindre ce privilege comme il veut : parce quHl ne fait pas partie du droit des gens." — S. 28, p. 414. {g) " On voit par ces details, que le droit d'asyle est, a regard des hotels des ambassadeurs, une source perpcStueUe de dissensions et de querelles. Le bieu des natioiis demanderait, sans doute, qu'on I'abolit tout-a-fait ; et cela parait d'autant plus raisonnable, qu'il y a plusieurs etats dans lesquels il n'est point connu." — Merlin, ibid. Qi) L. ii. c. 18, viii. 2. 236 INTERNATIONAL LAW. The British Government, of which the Duke of Newcastle was then prime minister, complained bitterly of this act, and demanded reparation for an alleged insult to the ambassador ; the complaint, however, was founded rather upon the manner in which the act was done than upon a claim for the right, on the part of the ambassador, to have retained the refugee. Spain refused to make any reparation, and asserted boldly the legality of what she had done. The difference between the two nations increased in bitterness tUl, in the next year, war upon other grounds broke out between them. It would seem to follow, from the principles which have been laid down, that Spain was not guilty of any violation of Inter- national Law {i). CCV. In 1747, a Swedish merchant of the name of Springer, accused of high-treason, took refuge in the hotel of the English Ambassador, Colonel Guideckens, at Stockholm. The ambassador refused to surrender him ; the Swedish Government surrounded his house with troops, searched everybody who entered it, and caused the carriage of the ambassador, when he left the hotel, to be followed by a guard. Guideckens surrendered Springer under a protest as to the violence done to his ambassadorial privilege. England demanded reparation, and Sweden steadily refused to give it, and the ambassadors from the two Courts were mutually withdrawn. It seems clear that the conduct of Sweden was In accord- ance with the principles of International Law {k). CCVI. It sometimes happens that a State authorises a foreign State to acquire, within its territory, by purchase, a residence for its ambassador, and allows such residence to be vested in the Government of the country which accredits the ambassador {I). (0 De MaHms, C. C. i. 174. (k) Ibid. i. 326. (J) Act of the British Parliament "to -authorise the purchase by the Prussian Minister of a residence in England for the use of the Prussian Legation, and to regulate the future holding of the same.'' — 13 & li Vict. c. 3. — Jlertskt's Treaties, vol. viii. p. 800, EMBASSY — PRIVATE RELIGIOUS SERVICES. 237 CCVII. So long, however, as the ambassador does not convert his hotel into a place of refuge for offenders against the laws of the State, he has a right to enjoy the most per- fect and uncontrolled liberty of action within (?n) the pre- cincts of his hotel. It seems a corollary from this proposition that he should be entitled to exercise privately the rites of his own religion, though it be at variance with that of the law of the State in which he is resident («). CCVIII. Strictly speaking, however, this privilege is confined to himself, his suite, and his fellow-countrymen commorant in the foreign land ; for although he cannot be prevented from receiving native subjects who come to his hotel, yet it is competent to the State (o) to prohibit them from going to the ambassador's hotel for this, or indeed for any purpose. According to Wicquefort, the State might require that the religious services be performed in the native language of the ambassador. This, however, does not appear to be a tenable position. The sanctity of the hotel must be violated, in order to ascertain the language, and certainly there never could have been any semblance of reason for preventing the ambassador or his chaplain from the use of the universal, or Latin, language in their devo- tions. This restraint by the State must be placed, if at all, upon her own subjects. CCIX. Since the period of the Keformation, general In- ternational usage has sanctioned the right to exercise private domestic religious rites in the hotel, which, so long as they are strictly private, seem to claim the sanction of natural as well as conventional International Law. Two conditions, however, have formerly accompanied the permission to exer- cise this right — one, that it should be permitted to only one minister at a time from one and the same court ; another, (in) TVicqtiefort, ibid. ss. 415, 418. (n) Martens, ss. 224, 5, 6, generally on this subject, (o) Martens, li. 225. Permission even for foreigners belonging; to a third comitry to attend bas been the subject of treaties. 238 INTERNATIONAL LAW. that there should not be already a public or private exercise of the religion existing and sanctioned without the precincts of the hotel. Having regard to this latter condition, the Emperor Joseph II., having granted to the Protestants at Vienna the liberty of meeting for the private exercise of their devotion, insisted on the chapels of the Protestant ambassadors being closed. There does not, however, seem to be any foundation in principle for this very arbitrary act; more especially as Protestant is a mere term of negation, under which are included worshippers of very different tenets. CCX. The only sound principle of law on this subject is that already mentioned, viz. : — E-eligious rites privately exercised within the ambassadorial precincts, and for his suite and countrymen, ought not (k) be interfered with. The erection of a chapel or church, the use of bells, and of any national symbol, is a matter entirely of permission and comity. AMBASSADOKS—DIFFEKENT CLASSES. 239 CHAPTER IX. AMBASSADORS. — DIFFERENT CLASSES OF PUBLIC MINISTERS. CCXI. The Romans, and indeed the ancients generally, recognised but one class of diplomatic agents, whom they usually designated by the terms oratores or legati. In Europe these terms found their translation at first in the generic term of Ambassadors (a), or in some equivalent designation of a single class. Since the fifteenth or sixteenth century, the refinements and the vanity [b) of European Courts have introduced various grades of diplomatic agency into the positive Law of J^ations, which are only so far of importance inasmuch as different ceremonial privileges are attached to the different degrees of legation. But to the accredited pubKc minister of every State, what- ever be his designation, the rights of inviolability and the privileges of exterritoriality appertain with equal certainty and strength (c). (a) Amhassadeurs, Binhaxadores, Ambaciatori ; periaps from the Spanish emhiar, to send, or more probably, regard being had to the similarity of the word in various languages, from ambactus (Botschafter, Gesandter). (h) And the economy, it should seem, less expense and state being ne- cessary for the minister of inferior rank. According to Vattel, Louis XI. set the example. — L. iv. c. vi. s. 69. There have been two classes, Kliiber says, since the beginning of the sixteenth, and three since the beginning of the eighteenth century. — S. 170. (c) " Legati varia nunc nomina rem ipsam idem sunt." — BynJc. De Foro Leg. o. 1. "Qusecunque autem legatorum nomina sint et qntecunque legatio sive 240 INTERNATIONAL LAW. CCXII. Equally unknown to the ancients was the modern distinction of Ordinary, or Resident {d), and Extraordinary Ambassadors. The Romans, safe, as they reasonably concluded, in the vastness of their empire, from foreign invasion, and having but little commerce with other nations, neither required nor instituted any resident embassy in foreign countries. CCXIII. The breaking up of this vast empire into various kingdoms introduced that necessity, which, under the gigantic domination of Rome, had not existed. It was not, however, till after the Peace of Westphalia (1648) that the institution of permanent embassies, though beginning, contemporaneously with standing armies, to take root soon after the fifteenth century, can be said to have be- come the established practice of nations (e). It was about this period that the rights of legation began to be ascertained with the careful minuteness which distinguishes this part of positive International Law. CCXIV. Before the close of the fifteenth century,a second order, and during the eighteenth centuiy a third order, of di- plomatic agents appears to have sprung up (/) ; and since the Congress of Vienna, in 1815, and the protocol of Aix-la- Chapelle ((7), in 1818, to which Austria, France, Great ordinaria, aive extraordinavia, quamvis et pro mittentis et pro missi dignitate et titulo alius atque alius legatis habeatur honor, id tamen constare debet, si, ut oportet, ex jure frentium causam sestimemus, legati personam semper atque sancte babendam, semper Deque custodienda jura, quffi leg-atis, tanquam legatis, debentur." — Bynk. ibid. All classes of diplomatic agents have equally the "jus revocandi domum." — Ihid. (d) Vattd, 1. iv. c. vi. s. 73. (e) IVard, vol. ii. p. 413. Hefft-ers, s. 199. Mirans, s. 89. Klilher, a. 1 70. 3Irrlin, Rupert. MiniMre piiJJic. (f) Heffters, s. ••',57, n. (/?) Mirms, s. 85, AMBASSADORS — DirFEKENT CLASSES. 241 Britain, Prussia, and Russia were parties, the diplomatic hierarchy has consisted, techmcally speaking, of four orders, classified as follows : — The first class is composed of ambassadors, ordinary and extraordinary (/«), as their mission be limited or indeterminate in point of time. Palpal legates, a or de latere, and nuncios, ordinary or extraordinary. CCXV. All these diplomatic agents enjoy, in the fullest manner, the privileges incident to what is universally called the representative character, by virtue of which they repre- sent their Sovereign or State, not only in the conduct of aflFairs at a foreign court, but they also represent (i) the person of the Sovereign or State, and are by usage entitled, speaking generally, to the honours which the Sovereign or the State (if it could be conceived to be present) would receive. This idea of the full representative character in the agent, had no doubt its origin in the fundamental constitution of Monarchical States, because it was possible to represent the person of the Monarch ; but Republican States, nevertheless, have imitated the example. CCXVI. Legates a latere must not be confounded with another class of Papal agents designated Nuncios (A). The legates a latere are sent by the Pope into Roman Catholic countries, to exercise, in his name, the spiritual (h) E.g. such as are sent on embassies of congratulation, cnndolence, or excuse (Miruss, s. 8G), or to adjust some particular dispute, although' there be a resident ambassador. Martens, s. 193. (j) Merlin (Sep., Ministre public, s. 1.), however, says, " Nous disona que, dans un tel ministre, la representation est presque parfaite, car elle ne I'est pas absolument : quels que soieut les honneurs qu'on rend a un ambassadeur, ils n'^galent jamais et nulle part ceux qu'on rendrait a un souverain en personne; et c'est I'embarras de I'^tiquette, a regard d'un souverain se trouvant en pays stranger, qui a fait imaginer I'incognito." (k) The Legate is selected from the cardinals, but not the Numio. Vide post. Merlin, ibid. VOL. IL B 242 INTERNATIONAL LAW. functions which depend upon his recognition as Head of the Church. The nuncios are ambassadors sent to foreign courts to represent the Pope in the conduct of his affairs, of whatever kind they may be (Z). CCXVII. The division of ambassadors and nuncios into ordinary and extraordinary had its origin in the distinction between permanent or indeterminate missions, and those which had for their object the transaction of an extraordinary, particular, and determinate business. In modern practice, however, the title " extraordinary" is given occasionally, as a title of greater honour, even to am- bassadors destined to a residence, for an indeterminate period, at the court to which they are sent (wi). CCXVIII. Diplomatic agents of this first class can only be sent by States, whether monarchical or republican, entitled to royal honours. That is to say, if an inferior State accredit an ambassador of the first class, he will not be re- ceived (n) by the great European powers. It is impossible, however, to maintain, as has been attempted, that the right to send ambassadors is confined to monarchies, or to deny that the rank of the ambassador, abstractedly speaking, depends upon the sending and not upon the receiving State (o). CCXIX. The second class comprises Envoys {Envoyh, Ablegati, Prolegati, Inviati) Ordinary and Extraordinary. Ministers Plenipotentiary (Plena potentia muniti, 3Ii?iistres pUnipotentiaires, hevollmachtige Gesandten, Minister). (/) Vide post, Chapter on Religion and the Siaie. (m) Martens, uhi supi: {n) If he be received at all, it must be according to his credentials. - Vattel, 1. iv. c. vi. s. 76. fide post. (o) Miruss, s. 113. Heffters, a. 209. Martens, s. 108. Vafte!, 1. iv. c. vi. s. 78. AMBASSADORS — DIFFERENT CLASSES. 243 The Austrian Minister at Constantinople, who appears to be by custom exclusively designated as Internuncius. The Internuncio of the Pope. CCXX. The third, or intermediate class, created by the Conference of the JFive Powers at Aix-la-Chapelle, in 1818, is composed of what are called " Ministres residents^'' ac- credited to the Sovereign. Ministers of this class are sometimes said to represent the affairs, and not the person, of their Sovereign, and to be therefore of inferior dignity(jo). The fourth, usually denominated the third class, includes Charges cC Affaires (Geschafts(rager)accrediteAix> the Minister of Foreign Affairs ; either such as are originally sent and accredited ad hoc, or who have been nominated, either ver- bally or by writing, ad interim, during the absence of the minister (^), or accredited to courts to which it is not cus- tomary to send a formally constituted minister. The ceremonial honours to which this class may be entitled appear doubtful, but they are entitled to the immunities of recognised diplomatic agents, though without the formal character of" Ministers." To this class,belong Consuls (r) being accredited as diplomatic agents, or public ministers, such as are maintained by the Christian Powers of Europe and America at the Courts of the Barbary States or in Egypt. CCXXI. These different orders of ministers, it must be observed, can only be distinguished by the ceremonial honours accorded to them; and, in fact, these divisions. (p) " Le r(5sident ne repr^sente pas la personne du prince dana sa dignity, mais seulement dans ses affaires." — Vattel, 1. iv. c. vi. s. 73. See below, remarks on his real identity with the envoy. (}) Ordinarily the Secretary of Legation. — Merlin, ibid. s. 1. vi. Martens, s. 194. Elilber, s. 182. Martens, s. 194. (r) " Si ce prince envoie un agent aveo des lettrjs de ci'^ance, et pour affaires publiques, I'agent est des-lors rainistre public : le titre n'y fuit rien."— Vattel, 1. iv. c. vi. s. 75. u '2 244 IN I'ERNATIONAL, LAW. which make the differeuce of order depend upon the dif- ference of ceremonial, are, strictly speaking, illogical (s). For if, upon this principle of distinction, it were asked why the ambassador enjoyed greater honours than the envoy, it must be answered, because the former belongs to the first, and the latter to the second class ; and if it were asked why the former belonged to the first, and the latter to the second class, it must be answered, because the former is an ambas- sador and the latter an envoy. CCXXII. The only sound and logical division is that which is founded on the true principle of general International Law, viz., a regard to the character of the affair evidenced by his credentials {mandatum, mandai), entrusted to the manage- ment of the agent, whatever be his title. There is a clear distinction, according to the nature of things, between agents {Plenipotentiaries), accredited by one Sovereign to another Sovereign, and agents ( Charges d' Affaires'), accredited by one Minister for Foreign A.tfairs to another Minister for Foreign Affairs {t). There is also a distinction, less clear but conceivable, be- tween the minister representing his Sovereign, both in his person and in his affairs, as is the case with the ambassador, and the minister representing the Sovereign in his affairs only, as, according to Vattel (m), is the case with the Resident, or even with the Envoy. Neither of these classes of minis- ters have the preeminently representative character (caractere representatif par excellence) which belongs to the full ambas- sador (a-). It is between these two classes, therefore, that Vattel pronounces " the most necessary and the only true distinction " to exist. The juster division, however, appears to be that already (s) There is much truth in M. PitiJiea-o Ferreira's remarks on this point. — Note to 192ncl section of Martens, (t) Maiiens, s. 191. Wheaton, 1. 262, s. 6. (m) L. iv. 0. vi. s. 73 : "ie S^sident," &e. {.v) Mai-iens, s. 193, Notes, &.c. AMBASSADORS — EANK AMONG THEMSELVES. 245 stated, VIZ., between agents accredited to the Sovereign, and agents accredited to the Minister. CCXXIII. It has been already observed, that all these diiFerent classes enjoy equally the immunities (i/) incident to the jtcs legationum {droit de legation, d^ambassade, Gesandt- schaftsrecht). According to the fourth article of the Congress of Vienna, (1815), the rank of diplomatic agents between themselves was to be determined by reference to the date of the official notification of their arrival at the court to which they are accredited ; and by the sixth article, as we have already seen («), all distinctions of rank between diplomatic minis- ters, arising out of the ties of consanguinity and the domestic or political relations of their respective courts, are abolished. CCXXIV. Every State may determine for itself what rank it will confer upon its diplomatic agents ; nor is it restricted by International Law as to their number (a), their sex (6), their religion (c), or their station, whether lay or clerical, military or civil (d), unless the latter be opposed to a funda- mental law of the receiving State. It is usual for States to send and receive diplomatic agents of equal rank. A diplomatic agent may be accredited at one and the same time to various States, as the history of Germany and Switzer- land abundantly testifies (e). (y) Heffters, 208 : " In Ansehung der gesandtschaftlichen Gesohafte selbst, der Fahigkeit dazu, und ihrer Giltigkeit, ist der ganze Eangiin- terschied vbllig ohne Einfluss." (z) Vide ante, Chapter on Sovereigns. Martens, s. 199. (fl) Mintss, s. 117. (6) Martens, a. 120. Moser, Die Oesandten nach ihren Mechten und Pflichten. — Kleine Schriften, t. 8, n. 2. Miruss, s. 127. (c) Vide post, EELiGioif and the State. The Bishop of Koss was Mary Queen of Scots' ambassador; the Bishop of Bristol was plenipotentiary at the Peace of Utrecht, the last instance of the diplomatic employment of an English Bishop. (d) Kliiher, s. 187. (e) Miruss, s. 120. 246 INTERNATIONAL LAW. A diplomatic agent may be fully empowered to negotiate with foreign States, as at a congress of different nations, without being accredited to any particular court: or he may be accredited by a third State to mediate between two other States (/). CCXXV. The legal status of mere agents employed, on behalf of Governments or Princes, in foreign countries, is not very clearly defined by any writer upon International Juris- prudence {g\ It is clear, however, that agents employed in adjusting private claims of the Sovereign, or negotiating a loan, com- missioners to settle boundaries, and the like, are not virtute officii clothed with the immunities of a diplomatic agent. The same remark applies to secret emissaries of a State, though sent with the permission of the foreign State into its territory. These commissioners or emissaries, though furnished per- haps with {h) letters of recommendation from their Sovereign, and therefore entitled to more consideration than private individuals, are not accredited, and therefore cannot claim ihejus legationum. If, however, the State clothe them with diplomatic powers, and accredit them to a foreign State, they become entitled to the immunities of a diplomatic agent (t). (/) Miniss, s. 86, n. a. (g) Wicquefort, 1. pp. 62, 63. Vattel, 1. iv. c. 71. s. 75. Heffters, s. 222. Klube); ss. 171, 172. Martens, ss. 196, 197, and P. Ferreirn's notes thereupon. Miniss, S3. 107-111. {h) Martens, s. 203. (i) "Le mesme mot (Commissaire) a souvent uue signification plus eetendue, et marque un ministre qui n'a point d'autre qualitiS parti- culiere; et alors il pent estre ministre public, soit qu'il ait est (5 en- voy^ a un congres ou a quelque prince ou r^publique." — 1 Wicque- fort, 64. Mirtoss, a. 86 : Geschdftsgesandte. " Si ce prince envoie «/i aycnt avec des letlreb de creance, et pour AMBASSADORS — DEPUTIES — CONSULS. 247 This is also the case- with deputies sent to a Congress on behalf of a Confederation of States, if they be accredited. The whole question depends upon whether or no the con- stituent body has been competent, and has intended to clothe them with a ministerial character. CCXXVI. Consuls, generally speaking, are not entitled to the jus legationum. The institution of the consulate being of great importance and some complexity, must be reserved for a separate and distinct discussion (A). aflfairea publiques, I'agent est des-lors ministre public : le litre n'y fait rien." " II faut en dire autant des deputes, commissaires, et autres charges d'affaires publiques;' — VatUl, ibid. " Tout depend de la question de savoir jusqu'a quel point leur con- stituant a pu et voulu leur attribuer un caractere minist^riel." — Martens, ibid. {h) Vide post, Part Seventh, Chapter I. 248 INTERNATIONAL LAW. CHAPTER X. AMBASSADORS — INSTRUCTIONS. CCXXVII. "With reference to the State which he re- presents, the public character of the ambassador may be said to begin with the receipt of his instructions, which con- tain the measure of his responsibility to his own Grovernment. These are for his own guidance ; they may be secret or ostensible to the court to which he is accredited, or their partial or entire communication may be left to his discre- tion (a). Despatches addressed to him after his departure may contain, in substance or in form, subsequent and additional instructions. CCXXVIII. Vattel remarks, that if the ratification of the principal were not now held necessary for any engage- ment entered into by the ambassador, these instructions would be liable to those principles of construction which natural {b) law would apply to the matter of agency and procuration [procuration, mandement). CCXXIX. With reference to the State to which he is sent, the public character of the ambassador receives its formal recognition on the production of his Letters of Credence («) Vattel, 1. iv. c. vi. s. 77. Wheaton, 1. s. 268. Heffiers, s. 210. Martens, s. 205. Bynkershoek, Q. J. P. 1. 2. c. vi. : '' Legati quid remm olim egeriul, et mine agant cum publice audiuntui'." (b) Here the Justiniiiu L.iw would be almost necessarily resorted to. Minuss, s. 133. AM15ASSADORS — LETTERS OF CREDENCE. 249 {lettves de ci-eunce, Creditiv, Credentialen, Beglaubigungs- schreihen) (c). This instrument is addressed by the Sovereign or chief magistrate of the State which the ambassador represents to the Sovereign or State to which he is sent. In the case of a charge d'affaires, it is addressed by one Minister of Foreign Affairs to another (c?). It contains the general purport of the mission, and the name and class of the diplomatic agent, and requests that faith may be given to his representations on the part of his principal (e). The same Letters of Credence may suffice for several ministers, if they be of the same rank. Sometimes one minister is furnished with several Letters of Credence, if he be accredited to several Sovereigns or States, or to the same Sovereign in various capacities. If the rank of the diplomatic agent be changed during his residence at a foreign court, fresh Letters of Credence are required, and the ceremonies incident to their presentation are renewed (_/). According to modern custom, the Full Power empowering the diplomatic agent to negotiate, is not inserted in the Letters of Credence, but is a separate instrument, drawn up in the form of letters patent (mandatum procuratorium, pleni- potentia, plein pouvoir , Vollmacht) (g). (c) Vattel, 1. iv. i;. vi. s. 76 : " Les lettrea de cr&ance sont Tinstrument qui autoriae et constitue le ministre dans son caraotere anpres du prince a qui ellea sont adress^es. Si ce prince refoit le ministre, il ne peut le recevoir que dans la quality que lui donnent ses lettres de cr^ance. EUes sont comme sa procuration g^n&ale, son niandement ouvert, mandatum manifestum." Ibid. 8. 83 : " Des qu'il est entrg dans le pays ou il est envoys, et qu'il sefait connaiire, il est sous la protection du droit des gens." Heffters, a. 200. ((f) Martens, a. 202. Wheatm, 1. 267. (e) Martens, ubisupr. If) Heffters, a. 210. {g) Vattel does not mention the instrument of Full Powers as distinct from the Letters of Credence. Miruss, s. 136, 1-141. Martens, s. 204. Wheaton, 1. 268. Heffters, s. 210. 250 INTERNATIONAL LAW. CCXXX, It is the Full Power, whether it be a sepa- rate instrument or contained in the Letters of Credence, which founds the authority of the diplomatic agent as the representative of his Sovereign, and the terms of it are binding on him and his principal, though at variance with secret instructions. This important principle of International Law, which clearly flows from the reason of the thing, is supported by the express authority of Grotius (A), and by the analogy of the law of mercantile agency as set forth in the Digest, which is in this instance, as in others, the written Law of Nations (J). The Full Power may be general or special. The general Full Power (mandatum illimitaturri) capacitates the holder of it for all the usual diplomatic functions, or for negotiating generally with a foreign State. There are some instances of such a Full Power being construed as accrediting the bearer to all courts {actus ad omnes populos) (A) ; but this construction has long ceased to be maintained. (A) Orotius, 1. ii. c. xi. s, 12 : " Sed et per hominem alterum obliga- mur, si constet de voluntate nostra, qua ilium elegerimiia ut instrumen- tum nostrum ad hoc speciatim, aut sub generali notione. Et in generali prsepositione accidere potest, ut nos obliget qui prsepositus est, agendo contra voluntatem nostram sibi soli significatam : quia hie distincti sunt actus volendi : unus, quo nos obligamus ratum habituros quicqidd ille in tali negotiorum genera fecerit, alter, quo ilium nobis obligamus ut non agat nisi ex prsesoripto, sibi non aliis cognito. Quod notandum est ad ea, quse Legati promittunt pro Regibus ex vi instrumenti procuratoiii, excedendo arcana mandata." lb. 8. xiii. : " Atque hinc etiam intelligi potest exercitoriam et insti- toriam, quse non tarn actiones sunt quam qualitates actionum, ipso natu- rali jure niti." Bynk. Q. J. P. 1. ii. s. 2, c. 7. (i) "■ Ut autem obtinuit, Jus Justiuianseum appellari Jiis commune, ita viciasim Jus commune genera quodam reciprocationis, appellabitur Jus Csesareum." — Bynkershoek, Q. J. P. 1. i. c. xxiv. (K) Mirms, s. 137. Kliiher, a. 193, n. c, who says that two instances are found in Lamberty 2Iemoiyes, viii. 748, ix. 653. Mitriens, a. 204, n. 6, cites Be Torey, Miiuoircs, t. iii. p. 65, and says, AMBASSADORS — LETTERS OF CREDENCE. 251 The special Full Power (mandatum limitatum) authorises the holder of it to transact only a particular business : the limits of his authority are defined, and out of these he cannot travel. CCXXXI, If these powers be granted to several persons, it should be expressed in them (Z) whether they may act severally or only jointly in the execution of their office. In time of peace, the diplomatic agent is sufficiently pro- tected by the passport of his own GoVernment. In time of war he must be provided with a pass of safe-conduct {sauf- conduit, salvi conductus literai), to ensure his protection while travelling through the territories of the enemy of his State {m). that the plein pouvoir given by the First Consul to Augereau, in 1800, to make peace with the princes of the empire, was of this description, (0 MaHens, s. 204. (m) Miruss, s. 135. Wheatm, 1. 268, 269. 252 INTERNATIONAL LAW. CHAPTER XI. AMBASSADORS ARRIVAL AUDIENCE, CCXXXII. Evert diplomatic agent must notify his arrival to the Minister for Foreign Affairs (a). If the diplomatic agent be of the first class, his arrival is communicated through the Secretary of the Embassy, or some other gentleman ( Gesandtschaftscavalier) attached to the mission. He delivers a copy of the Letters of Credence to the Minister for Foreign Affairs, and requests an audience for his principal with the Sovereign. This audience may be Qithei public or private : diplomatic agents of the first class are alone entitled to the former. But this audience is not a necessary preliminary to his entering upon the performance of his functions. The public audience used to be preceded by a solemn entry {entree solennelle), the details of which, such as the number of horses which may draw the ambassador's coach, the staircase by which he is to ascend, and the like, have been dwelt upon with patient and characteristic minuteness by many German publicists. The ceremony has now fallen into general desuetude {b). At the audience, which is now usually private, the Letters of Credence are delivered, a complimentary speech is made by the ambassador, and replied to by the Sovereign. (d) Martens, s. 206. Miruss, a. 307. Wheaton., 1. 270. * (b) " Au reste, toute cette pem'ble ceremonie de I'audience solennelle est pen ngcessaiie, nierae a un ambassadeur, pour entrer en fonctions," &c. JJaiie/iK, ibid. AMBASSADORS— ARRIVAL — AUDIENCE. 253 CTCXXXIII. If the diplomatic agent be of the second or third class, his arrival is notified by a letter to the Minister for Foreign Affairs who is requested to take the orders of his Sovereign respecting the delivery of the Letters of Credence. It should seem that the majority of European courts would concede to these diplomatic agents the privilege of a public audience (c). In practice, however, the Sovereign usually receives them at a private audience, at which the Minister for Foreign Affairs restores to them their Letters of Credence. If the diplomatic agent be of the fourth class, if he be a Charge cC Affaires not accredited to the Sovereign, his arrival is notified by letter to the Minister for Foreign Affairs, of whom alone an audience is requested, for the purpose of de- livering the Letters of Credence {d). " In Kepublican States," Mr. Wheaton observes, " the " diplomatic agent is received in a similar manner by the " chief executive magistrate or council charged with the " foreign affairs of the nation." It should seem, however, that though there is less uniformity in republican courts as to the observance of the ceremonies of a public audience, they have nevertheless retained the principal circumstances of the etiquette practised by monarchical courts upon these occasions (e). CCXXXIV. The rules of etiquette which long usage has established between diplomatic agents resident at the same foreign court, and towards the members of the foreign Grovernment, occupy many pages of some works upon In- ternational Law ; but these rules, though their observance on the ground of convenience be very desirable, and their non-observance would denote ill-breeding in the State (c) Martens, s. 207. Miruss, a. 311, would seem to deny this. (d) Wheaton. ibid. (e) Martens, a. 206. 254 INTERNATIONAL LAW. renouncing them, do not arrive at the dignity of laws, or attain the character of rights {/). CCXXXV. Merlin's remark is sound and just, that there is but one general rule on this subject: namely, that pubKc ministers should receive all the distinctions which etiquette and the manners of each nation have determined, as marks of that estimation which is befitting. It must be remembered that custom may impart a value to a ceremony in itself indiiferent, but which has become significant of the estimation in which the object of the ceremony is held. We have seen an instance of this in the honours of the salute paid to the flags of nations. When usage has attached a real value to a point of etiquette, the omission of it is not justifiable by any principle of Inter- national Law {g). CCXXXVI. Nevertheless, it must always be competent to a Sovereign to make alterations in the ceremonies of his court : he must, of course, be prepared for two consequences — one would probably be, that foreign nations will refuse to accredit diplomatic agents to him to be received upon the footing of these alterations ; another, in all likelihood, would be, that he must submit himself to retaliatory altera- tions, in the person of his own representatives, at foreign courts (Ji). CCXXXVII. (i) The mission of a diplomatic minister may be: — if) Wheaton, 1. 272. Merlin, ibid, s. iv. (.3) " Quand ime coutume," says T'atte/, " est tellement ^tablie qu'elle donne une valeur riSelle a des choses indiffiSrentes de leur nature, et line signification constante suivant les moeurs et les usages, le droit des gens naturel et n^cessaire oblige d'avoir %ard a cette institution, et de se conduire, par rapport a ces choses-la, eomme si elles avaient elles-memes la yaleur que les homnies y out attaehde." — L. iv. c. vi. s. 79. (h) Merlin, s. iv. See also Martens, s. 184, upon this point. (0 Martens, 1. iv. c. 3, s, 148. 31iniss, ss. .3G6-.370. AMBASSADORS — THEIR MISSION. 255 1. Altered in its rank or character. 2. Suspended. 3. Entirely closed or ended. CCXXXVIII. It is altered in its character when the grade of the embassy is heightened or lowered, when an envoy becomes an ambassador, or vice versa, or when an ambassador, sent on an affair of ceremony, becomes a resi- dent ambassador. By such changes as these the embassy is not suspended or ended, but only changed, as to its diplo- matic rank or character. CCXXXIX. Various events may happen which suspend the functions of the ambassador ; for instance, the death of his Sovereign may have this effect only, though it may also end his mission. During this interval, however, he enjoys all the privileges of inviolability and exterritoriality which appertain to his ofl&ce. These remain until his embassy be bona fide terminated, and until he has left the territory of the State to which he has been accredited. Thus Grotius observes : " In itu continuo et de reditu censetur, non hoc " ex vi verbi, sed ut absurdum vitetur : neque enim inutile " esse beneficium debet. Et abitus tutus intelligendus " usque dum eo pervenerit ubi in tuto sit " {k). CCXL. The mission is ended by : — 1. The lapse of a particular period, as in the case of an ambassador appointed ad interim, when the regular ambas- sador returns to his post. 2. By the accomplishment of the particular object of the mission, as in the case of an embassy sent for the purpose of congratulation, or to represent a State at a particular ceremony; or when there has been a special and limited object to the mission, which has either been attained or has failed. 3. By the death, abdication, or dethronement of the Kliiher, ss. 228-230. Wheatm, Dr. Int. i. ss. 23, 24. (/.:) L. iii. c. xxi. 16. 256 INTERXATIONAL LAW. Sovereign accrediting the ambassador, or by the death of the Sovereign to whom he is accredited. In both these cases, according to International Usage and Practice, the ambassador must be accredited anew by his Sovereign ; though, in cases in which it is known that his mission is only suspended, and that he will be re-accredited, it is usual to continue to transact business, sub sjpe rati, with him as ambassador. 4. By the formal declaration of the ambassador, on account of some injury or insult, or of some pressing urgency, that his mission must be considered as closed. 5. By the act of the court to which he is accredited, when that court, ou the ground of his misconduct, or of a quarrel with his Government, orders the ambassador to leave the territory, without waiting for his formal recall. 6. By the voluntary resignation of his office by the am- bassador himself. 7. By his recall by the Government which accredited him. CCXLI. In the last-mentioned case it is usual for the ambassador to request an audience, more or less formal, according to circumstances, with the Sovereign to whom he is accredited, and to deliver to him the order or letter recall- ing him {lettres de rappel, Zuruckberufungsschreiberi). He afterwards usually receives, in return, letters or papers to facilitate his return (what are termed lettres de recreance ij), recreditio), and his passport, and sometimes a present ; but the Republic of the North American United States follows the example of the ancient Republic of Venice, and forbids her representatives to accept any such present. (Z) " R^criSance est aussi en usage dans cette phrase, lettres de recreance, qui se dit, soil des lettres qu'un prince envoie a son aratassadeur, pnurles pr&enter au prince d'aupres duquel il le rappelle ; soit des lettres que ce prince donne a un anibassadeur, afin qu'il les rende, a son retour, au prince qui le rappelle. Le roi de],Prusse envoya une lettre de recriSance a sou anibassadeur pour le faire revenir. Le roi d'EspRgne donna une lettre de r^cr^ance a I'ambassadeur de France, lorsqu'il prit son audience de conge." — Diet, de VAcnd. v. Recreance. AMBASSADORS — DEATH OF. 257 CCXLII. When the death of the ambassador himself ends his mission, the first step that the Secretary of Legation — or, in his default, some Minister of an allied Power — takes is to aflSx a seal upon his official papers, and, if necessary, upon his moveables. It is only a case of necessity that warrants the interference of the local authority. His corpse is entitled to a decent burial at the place of his death, or it may be removed for the purpose of interment elsewhere ; and it is exempted from any mortuary dues usually payable in the country. All questions relating to his moveable property, whether he died testate or intestate, are, by a long- established rule of International Comity, determinable only by the laws of his domicU or of his own country. His move- ables are also exempt from any kind of tax or impost {droit d^aubaine, detractio). It is usual also to continue to the widow, family, and suite of the deceased, the privileges and immunities incident to his office, for such limited period as may reasonably suffice to enable them to leave the country. VOL. II 258 INTERNATIONAL LAW PAET THE SEVENTH. CHAPTER I. CONSULS — HISTORICAL INTRODUCTION. CCXLIII. In the second chapter of the former volume of this work (a), mention was made of a class of public officers, who, though not clothed, accurately speaking, with a repre- sentative character, are entitled to a gMasz-diplomatic position, namely Consuls (5). It is proposed now to take into consideration the character and functions imparted by International Law to this class of public officers. / CCXLIV^/The institution of a Foreign Consulate, within the territory^ of an independent nation, is a most important result of International Comity y hut inasmuch as Custom, Prescription, and Treaty havo'placed the Resident Consu- late, as much as the Resident Embassy, within the domain of Right, it seems more properly discussed in this portion of the work than in that portion which is devoted to the exclu- sive consideration of questions relating to International Comity (c). The origin of this institution is probably trace- able to that Domestic Consulate which, after the fall of the Western Empire, was, during the earlier part of the Middle Ases, founded in most of the maritime cities of the south of (a) Vide ante, vol. i. p. 10. (6) Mittitz, Manuel des Consuls, t. i. p. 6 1 a work of marvellous research and great ability. ((■) Vide ante, vol. i. pp. 12, 13, et prcesertim, pp. 182, 183. CONSULS — HISTORICAL INTRODUCTION. 259 Europe connected with commerce and navigation, the juris- prudence and authority of which rested mainly upon principles gleaned from the Roman and Greek Law. The tribunals of the domestic institution were occupied by judges (d), known by the name oiJuges Consuls, ov Consuls Marchands ; while the foreign institution was dependent on certain officers known by the title of Consuls dHuutre mer, or Consuls a Vetranger. These latter officers were persons^ sent ' by independent countries, or free cities, to the seaports and ' adjacent towns of foreign kingdoms, for the purpose of protect- ing the national commerce, especially in matters of^/ihipwreck, of watching over national interests and privileges/ justing disputes between national sailors and nj/rchants {/), The perils to which infant commerce was exposed, a£d the insecurity of personal intercourse with foreigners during the times of oppression which followed the overthrow of the Western Empire, rendered the two following objects matters of the greatest importance : — 1. The obtaining in foreign countries a place of safe deposit for merchandise. 2. A jurisdiction within the limits of it, independent of the country in which it was situated. ■ About the eleventh century depositories and ^jurisdiction in Europe, for the purpose of taking cognizance of all questions of this kind, sprang into existence under the protection of (d) The term "consulaire" is still used as synonymous with "com- mercial " on the Continent. " Sentence consulaire," '' condatnnatioii con- sulaire," "juridiction consulaij-e," as expressing the attributes and powers of " tribunaux de commerce." — De Martais, Le Guide diplomatique, t. i. p. 238, notes. (e) The first chapter of the famous Consolato del Mare is in these words : — " Sogliono ogn' anno, il di del Natale del nostro Signore, all' ora del vespero, gli uomini da bene naviganti, e padroni, marinari, o tutti, o maggior parte di quelli, ragunarti in consiglio, in un-iuogo da loro eletto, e deputato, come per usanza hanno uella Oitta di Valenza; e quivi per elezione, e non per sorte, tutti insieme raccolti, o la mag- gior parte di loro, eleggouo due uomini da bene, dell' arte del mare, per loro Consoli, e per Giudioi un' altro della medesima fazione del mare, e non d' altro qualsisia ufiicio o arte ; e questo eleggono per s 2 260 INTERNATIONAL LAW. f Consuls upon the shores of the Mediterranean Sea; and in the East, the establishment of similar institutions upon the coast of Syria was one of the immediate consequences of the Crusades. The establishment of factories in Greece by the inhabitants of Amalphi and Venice, indeed, preceded the Crusades, while the establishment of factories in Syria was the fruit of those conquests. These were at first under the protection of the Christian and Frank sovereignties, which, from the conquest of Palestine till the thirteenth century, maintained their position in the East. During this period, a system seems to have prevailed that every European should be amenable only to the law of his native country (/). A-fter this period, when the East had fallen under the captivity of Islam, treaties were entered into (of which the fourteenth century furnishes abundant examples) between the Christian and Moslem Powers, and especially in Egypt, which confirmed the establishment of European consulates in Mahometan countries. About the same time the institution began to extend itself, keeping pace with the extension of trade, beyond the limits of the Mediterranean, over the northern and eastern coasts of Europe. In the port's of the Baltic and the Mediterranean especially, foreign merchants inhabited particular quarters of the town, subject to the jurisdiction and authority of their Consuls, who were also designated by various titles, accord- ing to the customs of various countries, viz.: Governors, Protectors, Ancients, Aldermen (ff). Syndics, Jurats, Prevosts, Giudice delle appellazioni, le quali appellazioni si fanno delle senteDze date per i predetti Consoli. E le sopradette elezioni si fanno per vigore de' privilegi ottenuti dal Re, e dagli antecessor! di quello, quali privilegi hanno gli uomini da bene della sopradetta arte del mare." Then follow several chapters as to the mode of exercising their jurisdiction, both by the Consuls and the Court of Appeal. {f) TWe^csi, DoMTCiL, vol. iv. Miltitz, 1. ii. c. 1. Besumfph. 394-401. Ilejpers, Brittes Buch, iii. Die Consuln, s. 224. ((/) Appellation of the Hanse Towns. CONSULS — HTSTORICAL INTRODUCTION. 261 Capitouls, Echevins, and who administered justice to their fellow-countrymen according to their national laws, and maintained the privileges conceded to them in all matters, especially as to the use of the weights, measures, and coins of their respective countries. The organisation of the Consulate was more or less com- plete, as the interests which the Consul had to protect were more or less regular, as the obstacles they had to encounter were greater or less, as the Municipal Laws of the State in which they were established were more or less penetrated by the commercial spirit. The Levant pro- duced the best specimens of the institution ; and Venice, Genoa, Marseilles, and Barcelona appear to have been the cities in which it attained the greatest perfection (A). At this time, when the faitli of treaties was little respected ; when even alliances of States, subjected as they were to frequent violations, offered but a feeble guarantee for the security of life and property to the stranger ; when one nation generally regarded the trade of another as an injury to her own subjects ; when embassies were of rare occurrence and of short duration, and when there were no Resident Ambassadors, International Commerce would have withered away without the protecting shadow of the Consulate. Consuls alone, at this time, enjoyed the full privileges of the jus gentium, and all the immunities accorded at the present time to Ambassadors. Before the middle of the seventeenth century, however, a great change had been eifected in the whole condition of International Commerce and of International intercourse generally. About this time, permanent and perpetual lega- tions had become a part of the received Pubhc Law of Europe; the idea of national independence, moreover, had taken deep root, and the exterritorial jurisdiction, both criminal and civil, of the Consuls was wholly at variance with this principle ; at the same time the general refinement (A) Miltitz, 1. ii. c. 2, s. viii. p. 492. 262 INTERNATIONAL LAW. of manners, and the improvement of Municipal Law, rendered it less necessary ; and throughout Christian Europe, this jurisdiction passed into the hands of the territorial authorities. The mediasval institution of consular jurisdiction, under the influence of these causes, entirely changed its condition and character, and shrank into a general vigilance of the Consul over the interests of the shipping and navigation of his nation, and into a kind of authority, not very accurately defined (i), over the members of it at a particular locality. This is the position which, in Christian countries, the Consulate occupies at the present day. In Mahometan countries, however. Consuls have retained, by virtue of express stipulations in treaties, the jus gentium incident to accredited Ministers, together with the especial prerogatives of jurisdiction, which have been alluded to (A). CCXLV. The status of the Consulate, therefore, at the present time seems to require a twofold division, viz. : — 1. The legal status of Consuls in Christian countries. 2. The legal status of Consuls in the Levant and in Mahometan countries. (i) " A Vaimahle, aimablemetxt," in the Consular Instructions put fortii by France and Greece. (h) Mittitz, 1. iii. c. 1. Bynkershoeh, De Foro Leg. vol. vi. c. x. Martens, Droit des Oeris, 1. iv. c. iii. s. 147. Vattel, 1. ii. c. ii. s. 34. Bhintschli, Introd. p. 23: "Le nouveau droit international connait a c6t6 des Legations, le sj'steme des Consulats. Le nombre des consuls est beaucoup plus considerable que celui des reprfisentants diploniatiques des ^tats, et tend a s'augmenter beaucoup. Les consulats, r^pandus sur toute la surface terrestre, enveloppent le globe comme un r^seau de postes in- ternationaux ; ils facilitent les relations pacifiques entre les nations, et donnent plus d'intensite a la vie commune et aux int^rets communs des peuples. Les consuls ne sont pas, comme les diplomates, les repr(5- ---s'entants des (5tats ; ils ont siirtout a prot^ger a I'^tranger les int^rets de leurs nationaux, et a procurer aux droits de ces derniers la protec- tion qu'on leur accorde dans la patrie. C'est pour cela que I'importance des consulats augraente en proportion du d(5Teloppement et des progres des relutions entre peuples." MODERN CONSULATE IN CHEISTIAN COUNTRIES. 263 CHAPTER II. (a). MODERN CONSULATE IN CHRISTIAN COUNTRIES. CCXLVI. Consuls in Christian countries are not, legally speaking, Public Ministers of the State to which they belong, though having a public character, they are under a more special protection of International Law than uncom- (a) Kent's Commentaries, 8(c. vol. i. part 1, 1. ii. p. 41. TVheaton's Hist. p. 244. Wheaton's Elements, Sfc. vol. i. p. 282. Fynn's British Consul Abroad, passim. Wildman's Int. Law, vol. i. p. 130 ; vol. ii. p. 41. Heffters, Drittes Buch, p. 223. Ortolan, Dipl. de la Mer, t. i. p. 276. De Martens et De Cussey, i. Index expl. " Consuls.' ' Wicquefort, t. i. s. 5. p. 1. Valin, Ord., vol.i. 1. 1. t. 9. De Consuls. Saalfeld, Handhuch des positiven Volkerrechts, p. 117, s. 55. A very useful and correct summary of the duties and rights of Consuls. Report from the Select Committee on Consular lSstahlishments,la,ii heioie Parliament, 10th August, 1835. Fcelix, Droit international prive, ch. Exterritorialite. Flassan, Ilistoire generate et raisonnee de la Diplomatie fran^aise, t. i. vii. Orundsatze des praktischen Europdischen Seereohts, von Kaltetiboon, Berlin, 1851 ; ii. 352, s. 216. Le Guide diplomatique, par le B. Charles de Martens, t. i. c. 12, p. 236. (4th ed. 1851.) Regulations prescribed for the use of the Consular Service of the United States, Washington, 1870. Instructions to Consuls relative to the Merchant Shipping Act, pre2}ared by Board of Trade, London, 1855. On the 23rd of February, 1871, the House of Commons appointed a com- mittee " to enq^uire into the constitution of the diplomatic and consular services, and their maintenance on an efficient footing, required by the political and commercial interests of the country." 264 INTEENATIONA-L LAW. missioned individuals. This protection they have a right to claim both from the State which sends, and from the State which admits them. But they are not the representatives of their State, nor entitled to any of the privileges and immunities accorded to such representatives, whether they be full ambassadors or simple charges d'affaires, and for these more especial reasons : — 1. They are not, except in cases where they are also charges d'aflPaires (b), furnished with credentials {lettres de creance), but with a mere commission {lettres de provision) to watch over the commercial rights and privileges of their nations. 2. They cannot enter upon the discharge of their functions without the permission and confirmation of their coromission by the Sovereign of the country to which they are deputed. That commission is termed the exequatur, and may, at any time, be revoked by such Sovereign (c). 3. As a general rule, they are amenable to the civil and criminal jurisdiction of the country in which they reside. battel's position, that they are exempted from the latter, is wholly unsupported by the requisite proof (d). (b) The Consuls-General of France, at Cairo, Tunis, Tripoli, and in the capitals of the South American Republics, and also, it is believed, at Canton and Manilla, are charges d'affaires, as well as Consuls. The French agent at Bucharest is accredited as " Agent et Consul-Ggn&al." The powers of these Consuls are of a much more extended character than those of the ordinary European Consuls. — De Martens, ih. i. 257, n. Bhintschli, s. 250. (c) Bluntsohli, s. 246. {d) Vattel, t. i. 1. ii. c. ii. s. 34 : " Ses fonctions exigent premiere- ment qu'il ne soit point sujet de I'^tat oii il r&ide; car il serait obligiS d'en suivre les ordres en toutes choses, et n'aurait pas la liberty de faire les fonctions de sa charge. Elles paraissent meme demander que le Consul soit ind^pendant de la justice criminelle ordinaire du lieu ou il reside, en sorts qu'il ne puisse etre molests, ou mis en prison, a moina qu'il ne viola lui-meme le droit des gens par quelque attentat ■finorme." " Et bien que I'importance des fonctions consulaires ne soit point aasez relevSe pour procurer a la personne du Consul rinviolabiliti5 et I'absolue ind^pendance dont jouissent les ministres publics, conime il est sous la protection particuliere du souverain qui MODERN CONSULATE IN CHRISTIAN COUNTRIES. 265 4. They are subject to the payment of taxes. 5. The permission to have places of worship in their houses is very rarely accorded to Consuls (e). 6. They have no claim to any foreign ceremonial or mark of respect, and no right of precedence, except among them- selves according to the rank of the different States to which they belong, but they have a right to place the arms of their country over the door of their residence. I'emploie, et charge de veiller a ses int&ets, s'il tombe en faute, les ^gards dus a son maitre demandent qu'il lui soit renvoyS pour etre puni. C'est ainsi qu'en usent les 6tats qui veulent vivre en bonne intelligence. Mais le plus sur est de pourvoir, autant qu'on le pent, a toutes ces olioses, par le traits de commerce." " On peut accorder " (says De Martens, 1. iv. c. iii. s. 148, note) " que la plupart des Stats ne refuseraient pas 1 'extradition." " Considering the importance of tie consular functions, and the activity whicb is required of tbem in all great maritime ports, and the approacb whicli Consuls make to the efficacy and dignity of diplomatic characters, it was a wise provision in the constitution of the United States which gave to the Supreme Court original juris- diction in all cases affecting Consuls, as well as Ambassadors and other public Ministers ; and the federal jurisdiction is understood to be exclusive of the State Courts." — 1 Kent, 45. (e) The second separate article of the Treaty betvfeen France and the Hanse Towns, stipulated 1716. "I. Que si un ministredeSa Majesty, rSsidant dansune desdites villes, vient a y dficSder, il sera permis a sa famiUe, h^ritiers, ou ayant cause de continuer, en payant le loyer, d'y tenir chapelle, ainsi qu'elle s'y tena it pendant la vie dudit E&ident, et ce pendant trois mois seulement, a compter du jour de son dSces, a moins que Sa Majesty, avant ce temps-la, n'eut choisi une autre maison dans laquelle I'Stablissement d'une chapelle aurait aussitot 6t4 fait, auquel cas elle cessera dans la maison dudit defunt. " II. Que le Roi donnera des ordres precis et effectifs dans tons les ports et lieux nScessaires, pour qu'il ne soit apportS aucun trouble ni empeohement aux sujets desdites villes de Zubeck, JBremen, et Hmn- hotirg, lors ck la ceremonie des obsiques de ceux d'entr'eux qui seront d(5cSd^s, dans I'Stendue des terres de I'obSissance de Sa Majestt^, et ce sous peine de prison centre les contrevenans, et de telle amende qu'il appartiendra." — Schmauss, ii. 1623. See Wench, vol. iii. p. 769, for the Treaty between France and Ham- burg, A.D. 1769. Pynn, 13. De Martens, Dr. des Gens, i. 149. ibt) INTERNATIONAL .LAW. CCXLVII. De Martens (/) is of opinion that, unless they lave engaged in trade, or become owners of immoveable pro- )erty in the country, they cannot be arrested or incarcerated or any less oiFence than a criminal act. As a part of the esults of the memorable action at Algiers, Lord Exmouth lemanded and obtained full compensation from the Dey for ill injuries and losses inflicted on the British Consul, and saused him to beg pardon, in terms dictated, for having im- )risoned him ; moreover, he insisted on the release {g) of the Spanish Vice-Consul, imprisoned upon a fictitious charge of lebt. When the French protectorate (Ji) had been established ly Admiral Dupetit Thouars over Tahiti, in 1842, the J'rench found themselves the objects of ill-concealed hos- ility. This they attributed to the influence of the English aissionaries in the island. A Mr. Pritchard, who had gone lut originally as a missionary, was at this juncture acting as British Consul. He had, indeed, a short time previously, lotified to the English Government his resignation of that iffice ; but, as intelligence of the acceptance of this resig- lation had not reached Tahiti, he was still clothed with the haracter and exercising the functions of Consul. The french officers looked upon him as the chief author of the isturbances that broke out from time to time, and of the pposition evinced to their authority. On the night of the nd of March, in 1844, a French sentinel was attacked by be natives. The French determined to make Mr. Pritchard esponsible for this act. Accordingly, on the evening of [le 5th of March, as Mr. Pritchard was leaving his house, e was seized by the Commandant of Police, with some aldiers, who hurried him off to prison, where he was kept 1 close confinement. The following paper was circulated 1 the French, English, and Tahitian languages : — (/) De Martens, Le Guide diplomatique, i. 250. {(j) Annual liegistcr, 1816, pp. 104, 237, 238, 239. ill) This account is taken from the Annual Register for 1844. MODERN CONSULATE IN CHPJSTIAN COUNTRIES. 267 " Frencli Establishment in Oceania. " A French sentinel was attacked in the night of the 2nd " to the 3rd of March. In reprisal, I have caused to be " seized one Pritchard, the only daily mover and instigator " of the disturbances of the natives. His property shall be " answerable for all damage occasioned to our establish- " ments by the insurgents ; and if French blood is spilt, " every drop shall recoH on his head. " D'AUBIGNY, " Commandant Particular to the Society Islands. "Papiti, 3rd March." At the intervention of Captain Gordon, of the British war steamer Cormorant, Mr. Pritchard was released from prison, on condition that he should not be again landed on the Society Islands ; without taking leave of his family, he was conveyed in the Cormorant to Valparaiso, where he embar;ked in the Vindictive, and was brought to England. When the news of this outrage reached England, a natural feeling of indignation was loudly expressed; and the then Prime Minister, Sir Robert Peel, in his place in the House of Commons, declared that " a gross outrage, " accompanied with gross indignity, had been committed " upon Mr. Pritchard :" at the same time he stated that, as this act had not been done in consequence of any authority given for that purpose by the French Grovernment, he entertained a strong hope that it would at once make the reparation which Great Britain had a right to require. In this expectation Sir Robert Peel was not disappointed. On the last day of the session of the British Parliament, the 5th of September, he was enabled to state in the House of Commons that the discussion between the two Governments, relative to the Tahitian affair, had been brought to an ami- cable and satisfactory termination. This was effected by the payment, on the part of the French Government, of a sum of money to Mr. Pritchard, as an indemnity or com- 268 INTERNATIONAL LAW. pensation for the outrage which had been offered to him by the French in the island of Tahiti (i). CCXLVIII. The privileges of Consuls, so far as they are derived from the country to which they are sent, are, generally speaking, an exemption from any personal tax, and generally from the liability to have soldiers quartered in their houses ; and in cases where the ambassadors are absent, or non-resident, they have a right of access to the authorities of the State in which they reside. They are usually allowed to grant passports to subjects of their (the consuls) own country, living within the range of their con- sulate, but not to foreigners. As a general rule {k), the muniments and papers of the Consulate are inviolable, and under no pretext to be seized or examined by the local authorities. CCXLIX. As a general rule, too. Consuls in Christian countries have no contentious jurisdiction over their fellow- countrymen, but simply a sort of voluntary jurisdiction — a power of arbitration (Juridiction arbitrate) in disputes, more especially those relating to matters of commerce (Z). Their functions must, in great measure, depend upon the municipal law of their own country. No contentions juris- (i) Annual Register, 1844, pp. 260, 261. (k) Mr. Fynn, in his work on the British Consul Abroad, observes (p. 17) : ' A Consul, however, is distinguished from the merchants or inhabitants of the place where he is appointed to by various privileges, derived from treaties, or founded on usage. He is respected in a parti- cular manner ; on his arrival he is allowed a free entry for his furniture and baggage ; he is exempt from the excise or inland duties on liquors and other articles of consumption, for himself and family ; he is entitled to a seat on the Bench with the magistrates of the place, whenever he is obliged to appear at their assemblies ; to act as Counsel for the subjects of his nation, in all cases of dispute between them and the natives of the place. He is exempt from lodging the military in his house ; and is to be furnished with s, guard, when he requires one, to aid and assist him in the maintenance of his authority over the subjects of his oimi country trad- ing to where he is located ; and all masters of vessels are to show him respect and obedience." (l) Tie Martens, Di: des Gens, i, 251. MODERN CONSULATE IN CHRISTIAN COUNTRIES. 269 diction can, according to the doctrine laid down in a former chapter, be exercised over their fellow-countrymen without the express permission of the State in which they reside ; and DO Christian State has as yet permitted the criminal jurisdiction of foreign Consuls. But usage, and the rule adopted in most treaties, concede to the Consul the assist- ance of the local police when it may be necessary for the exercise of his functions over the seamen of merchant-vessels belonging to his own country (m). In England it has been decided that in a suit for wages by seamen on board a foreign vessel, the Court of Admiralty has jurisdiction, but will not exercise it without first giving notice, in accordance with the directions of the tenth of the Rules and Orders of 1859 for the practice of the High Court of Admiralty, to the Consul of the nation to which the foreign vessel belongs ; and if the Consul, by protest, objects to the prosecution of the suit, the Court of Admiralty will determine whether it is fit and proper that the suit should proceed or be stayed. Such protest does not, ipso facto, operate as a bar to the prosecution of the suit, as the foreign Consul has not the power to put a veto on the exercise of jurisdiction by the Court of Admiralty. In such a suit it makes no difference that the plaintiff is a British subject; it is the nationality of the vessel, and not the nationality of the individual seaman suing for his wages, that regulates the course of procedure (w). The cases in the American Courts may be also consulted on this subject ; they contain the following propositions : — " A suit cannot be brought in a State Court against a " Consul of a foreign Government, admitted as such by the " Government of the United States. He does not waive ^ (m) Be Martens, ib. i. 287. (m) Blanche v. Mangel, The Nina., (1869) 2 Law Rep. P. 0. p. 38. The Franz et JElise, 5 Z.T. N.S. 291. See also Bluntschli, s. 252 : " Les Consuls n'ont aucune juridiction con- tentieuse, a moins qu'elle ne leur ait &t6 express^ment conKr^e par le Gouvemement du pays ou ils resident." 270 INTERNATIONAL LAW. " his privilege by appearing in the State Court, and plead- " ing to the merits " (o). " A Consul represents the subjects of his nation, if they '•' are not otherwise represented " {p). " A Consul of a foreign Power, though not entitled to " represent his Sovereign in a country where the Sovereign " has an ambassador, is entitled to intervene for all sub- " jects of that Power interested ; and though he should set " forth the particulars of his claim, still it will be sufficient " if they can be fully gathered from the allegations of the " libel, and the case it sets forth " (q). " A Consul, though a public agent, is supposed to be " clothed with authority only for commercial purposes ; he " has a right to interpose claims for the restitution of " property belonging to the subjects of his own country, but " he is not entitled to be considered as a Minister, or diplo- " matic agent of his Sovereign, intrusted, by virtue of his " office, with authority to represent him in his negotia- '" tions with foreign States, or to vindicate his preroga- " tive " (r). " Although a foreign Consul is admitted to interpose a " claim in the Admiralty for unknown subjects of his nation, " yet, before restitution can be decreed, proof of the indi- " vidual proprietary interest must be exhibited " («). " A foreign Consul has a right, without special authority " from those for whose benefit he acts, to institute a pro- " ceeding in rem, where the rights of the property of his " fellow-citizens are in question " [t). CCL. It has been observed, that the institution of the Consulate is a result of International Comity ; and that the (o) Valarino v. Thompson, 3 Seldom (N.S.) 676. {p) Oernon v. Cochran, Bee, 209. (q) Sobson v. The Huntress, 2 Wallace, 59. ()•) The Anne, 3 Wheat. 435. (s) The Antelope, 10 TVJieat. 66. (t) The Bella Cwrunes, 6 Wheat. 162. See also PritcharcFs Admiralty Bigest, p. 91 (ed. 1861), tit. Consids. MODERN CONSULATE IN CHRISTIAN COUNTRIES. 271 refusal to receive a foreign Consul is no breach of strict International Law. But a Consul, admitted without any- express stipulation, is entitled to the same privileges as his predecessors have enjoyed, upon the general principle men- tioned in a former chapter, that every nation is presumed, to follow custom and usage in its treatment of foreigners, and is bound to give previous warning of its intention, if it have any, of adopting a different course with respect to them (u). As a general rule, and in the absence of any treaty upon the subject, the Consul looks for his authority and functions to the diplomatic instrument by which he is appointed to his oflS.ce, to the exequatur which empowers him to exercise them, and to any modification which the particular law or custom of the country in which he is placed may apply to them {x) ; and he must always remember, that the principal end and object of the Consulate is to protect the external commerce and the national navigation of his own country in the rights secured to them by usage or treaty. CCLI. Some nations permit, and others forbid, their Con- suls to trade ; a trading Consul is, in all that concerns his trade, liable to the local authorities in the same way as any native merchant. In fact, sometimes natives of the place itself in which consular services are required, are appointed Consuls ; and thus are, at one and the same time, the sub- jects of the country in which they dwell and the agents of a foreign State. Such an appointment is, perhaps, rightly pronounced, by a considerable authority, to be objectionable in principle (?/). The prerogatives of such Consuls are very limited; the only exemptions which they appear to (m) Vattel, t. i. liv. ii. c. ii. s. 34: "Au d^faut des trait^s, la coutume doit servir de regie dans ces occasions ; car celui qui refoit un Con- sul sans conditions expresses, est cens^ le recevoir sur le pied gtabli par I'usage." {x) De Martens, ih. i. 260-265. (y) De Martens et De Cussey, Rec. de Trait., Index expUaatif, p. xxx. tit. Consuls, " Usage deplorable en principe." 272 INTERNATIONAL LAW. enjoy are from lodging soldiers and from personal service in the civic guards or militia {z). CCLII. Such an appointment cannot, of course, be made •without the sanction of the Sovereign, though a condition of this kind has sometimes formed the subject of an express pro- vision of a treaty. Thus, in the Treaty of 1753, between the Crown of the Two Sicilies and the Republic of Holland, it is provided : — " L'on fera attention, de part et d'autre, de nommer pour " Consuls dans les fitats respectifs, comme ci-dessus, de pro- " pres sujets naturels ; et si I'une des parties contractantes " nommait pour son Consul, dans les Etats de I'autre, un " sujet de celle-ci, il sera libre ^cette derni^re de I'admettre, " ou non " (a). CCLIII. Consuls-General are sometimes appointed. These officers exercise their functions over several places, and some- times a whole country ; and, generally speaking. Consuls and Vice-Consuls are under their control. CCHV. The appointment of Vice-Consuls is also sanc- tioned by the practice of nations. English Vice-Consuls are usually appointed by the Consul, subject to the approbation of the Foreign Secretary of State, and, as a general rule, the English Vice-Consul corresponds directly with the Consul, but in special cases with the Foreign Secretary, in the first instance (6). CCLV. The Treaties which have reference to this subject appear to admit of the following classification : — 1. Treaties between Christian European States. 2. Treaties between Christian European States and the States of North and South America. 3. Treaties between the States of North and South America. (z) De Martens, Le Ouide diplomatique, i. 398. (a) Wenck. Codfx Jur. Gent, t. ii. p, 775. (i) Fynn, p. 6. CONSULS. — TREATIES. 273 4. Treaties between Christian States and Infidel or Heathen States. 5. Treaties between Christian States other than those in Europe and America. The Treaties relating to this subject are very numerous ; as far as I have been able to ascertain, those, down to the year 1869, which principally illustrate the functions, powers, and privileges of Consuls are, according to the above- mentioned classification, the following : — 1. Treaties between Christian European States. France with Spain, 1768-1769, 1862. „ with Great Britain, 1787. .^^ „ with the Netherlands, 1840, 1865. „ with Russia, 1787. with Portugal, 1667, 1797. „ with Belgium, 1861. „ , with Italy, 1862. „ with Mecklenburg-Schwerin, 1865. „ with the Hanse Towns, 1865. Austria with Spain, 1725. „ with Grreece, 1835. „ with Russia, 1860. Denmark with Spain, 1641, 1742. „ with Russia, 1782. „ with Belgium, 1863. Kingdom of the Two Sicilies with the Netherlands, 1753. „ „ „ with Russia, 1787. „ „ „ with Sweden, 1742. Italy with Russia, 1863. „ with Belgium, 1863. Prussia with Portugal, 1844. „ ^ith Belgium, 1863. „ with the Netherlands, 1856 (c). Hamburg with Belgium, 1863. (c) This treaty is very important as to tlae admission of Consular Agents in the principal ports of the Dutch colonies. VOL. II. T 274 INTERNATIONAL LAW. Luheck with Belgium, 1863. Great Britain with France, 1787 {y'.de ante). „ with Portugal, 1846. *iy „ with Russia, 1843, 1859. i, with Spain, 1665, 1667, 1751. Spain with the Netherlands, 1714, 1816. „ with Great Britain (vide ante). Switzerland with Belgium, 1862. Sweden and Norway with Belgium, 1863. 2. Treaties between the States of North and South America and Christian European States. a. North America : — United States of North America with France, 1788, 1800. „ „ with Denmark, 1826, 1861. „ „ with Spain, 1795, 1819. „ „ with Great. Britain, , 1806. ^wt ipire remain, p. 206. The English Canonists and Ecclesiastical Historians limit the Roman 328 INTERNATIONAL LAW. CCLXXXVir. (a) The tendency and the object of Christianity was not merely to affect the spiritual condition of individuals, but to form them into a peculiar human Society. The end of this Society was to obtain immortal happiness after death — the means were to believe in its Divine Founder and to -will and to act in conformity with His commands. It was in its nature irrespective of the material order of things in which it was placed. It was a spiritual Society so far as a Society of human creatures could be ; but being necessarily a Society, not of spirits, but of men, it stood in need of material signs and means to accomplish its end. It was a visible and material order of men united for a common object. As far as each individual -was. concerned, Christianity was confined to internal operation between him and his God ; but as far as the Society was concerned, it required, like every other material union, that is, every union of corporeal persons, external means for its operation. It required human government, therefore, inasmuch as it was a human Society, in order that, by the use of external and material means, the spiritual end which it proposed to itself might be the easier obtained. This Society so outwardly shaped and constituted, is what we usually denominate the Church (b). Patriarchate to a part of Italy, Sicily, Sardinia, and Corsica. — Bram- halts Just Vindication, vol. i. p. 156, ed. Oxon. JUnyhanHs Antiq. ii. 17, 20. (a) Saggio Teoretico di Dritto Naturcde, appoggiato std fatto, del P. Luigi Taparclli (Leovino, 1845), Parte quiiifa, Dissertazicme quinta, l-. 1-2. The reader ■will find the Ultramontane theory stated with gTeat acute- ness of logic and admirable precision of language in this work. (6) " The Church, being a supernatural society, doth differ from natural societies in this, that the persons with whom we associate ourselves in the one are men simply considered as men ; but they to whom we be joined in the other are God, angels, and holy men. Again, the Church being both a society and a society supernatural, although, as it is a society, it have the self-same original grounds which other public societies have, namely, tlie natural inclination which all men have unto sociable life, and consents to some certain bond of association, which bond is the Law that appointeth what kind of order they shall be associated in, yet unto the Church, as it is a society supernatui-al, THE CHUKCH UNDER C0N8TANTINE. 329 This Society was independent of the territorial limits of kingdoms, but the individuals composing it must exist within those limits, they must be subjects or members of a State, a temporal Society, as well as of the Church, a Spiritual Society (c). If the State, in its corporate capacity, i-ecognised the religion of Christ, and established a Church, then the individual Christians were bound by the double tie of private will and social duty to the authority of the Church. But if it happened that the State did not socially recognise Christianity, then the individual Christians must remain members of both Societies. The present state of Turkey might be cited as an illustration of the truth of this proposition. In fact the duties and the rights of the citizens remain, and those of the Christian are superadded. The statement of Grotius on the subject is perspicuous and sound: — " Atque ita absurdum non est dari duo Judicia summa, " sed generum diversorum, quale est in sacris Judicium " directivum Ecclesise Catholicse, et Imperativum summa- " rum potestatum. Nam nee illo Judicio inter humana " ullum est majus auctoritate : neque hoc ullum majus " potestate " (d). As the Church has a peculiar relation to the State, so the Christian nation has the speciale jus gentis Jidelis (e) in its intercourse with Christian nations, as well as the jus this is peculiar— that part of the bond of their association which belongs to the Church of God must be a Law supernatural, which God himself hath revealed concerning that kind of worship which His people shall do unto Him. The substance of the service of God, therefore, so far forth as it hath in it anything more than the Law of Reason doth teach, may not be invented of men, as it is amongst the Heathens ; but must be received from God Himself, as always it hath been in the Church, saving only when the Church hath been forgetful of her duty." — Hooker, JScdesiastieal Polity, b. i. s. 15. (c) The subject of a Foreign Spiritual Corporation is glanced at in the case of The Sockty for the Propagation of the Gospel, Sfc. v. Wheeler et al, 2 GaUison's (Anierican) Reports, 104. (d) Grotius, De Imp. summ. potest, circa sacra, c. v. p. 91. (e) Vide ante, vol, i. p. 24. 330 INTERNATIONAL LAW. commune with Heathen nations, who are members of the great community of States. And so far the introduction of Christianity would not appear to have given rise to any difficulty in International Jurisprudence. The difficulty, it will be seen, proceeds from the disputes which have arisen among Christians and Christian nations with respect to the external government of this spiritual, but human. Society. These disputes relate both to the ■person in whom this authority is lodged, and also to the extent of that authority among those who are agreed as to the person in whom it is vested. The reasoning of the Roman Church is this, — the external and visible Church must be governed by an external, visible, and infallible authority ; that authority must be lodged in one person, and that one person must be the Pope (/), with- out whose sanction no bishop can be lawfully appointed, and who, for the purpose of duly exercising the authority, must possess a power irrespective of and superior to that of all temporal Sovereigns. On the other hand, the Galilean {g) and the English (A) Churches, and many Cis-montane (/) Taparelli, par. v. dis. v. c. 2, s. 1411. (g) Dupin states concisely the Gallican opinion, tlius : " Verum ut niajorem Ms lucem afferamus, distinguenda sunt plura in Romano Pontifice : — Primo, quod sit primus Episooporum. Secundo, quod sit Metropolitanus et Patriarcha. Tertio, quod aliquas hatet prferoga- tivas, aliqua jura peculiariter ooncessa. Quarto, quod habet potesta- tem temporalem in patrimonium Sancti Petri." — De Ant. Ecchs. Dis- cipUna, Diss. Historic, iv. p. 368 (ed. 1788). (/») The Anglican doctrine on this point is well stated in the J'indicite EcclesicB AnglicancB by Mason (ed. 1625), p. 430. The dialogue in the work is carried on by Fhilodoxus, a Romanist, and Orthodoxus, an Anglican ; — ''Phil. — Christus Dominus, supremum Ecclesiae caput, potuit per seipsum omnes illas Ecclesiasticaa actiones exercere, quarum potestatem aliis tradidit. " Orth. — Rectissime. Quam enim Apostolis prajdioandi, baptizandi, ordinandi Eucharistiam ministrandi concepit potestatem, quanta quanta erat, ab ipso solo originem duxit " Phil. — Idem etiam diceiidiim est de Papa. " Orth. — Esto, ct de qiiovis Episcopo." THE CHURCH UNDEXi CON8TANTINE. 331 canonists, hold that the Episcopate is not necessarily depen- dent upon the Pope ; they assert that during the first cen- turies of the Church, and at a still later period, the Patriarch of Rome exercised no jurisdiction, properly so called, over the other Patriarchs, though a great respect, approaching to homage, might have been originally paid by the Eccle- siastical authorities of all countries to the Bishop of the Imperial City — a respect which the Gallican Church is still willing to continue {i). The Protestant Churches, which have rejected Episcopacy, a fortiori deny the claims of the Papacy. The importance of these two views, in their bearing upon International Law, is, as will be seen, very great. It must be the duty of the International Jurist to ascertain whether these Papal claims are consistent with the Eights of Nations (A); whether they are supported by credible evidence, by the records and practice of States ; whether the claims have varied from time to time according to the energy of pontiffs and the weakness of princes, or whether they have been always inflexibly the same, flowing from the (j) Taparelli's mode of disposing of the diificulty of the Gallican Church is edifying: "Non pretendiamo qui tacciare teologicamente la opinione gallicana, ma godiamo nel considerare che la divisions da noi stabilita delle fornw di governo, a rigor di filosophia, venga qui a giustiflcare la riprovazione, che soffrirono piii volte dalla Chiesa, le famose proposizioni del 1682. I loro difensori non coynpreiideano che logicamente la Chiesa presso di loro diveniva repubblica, eppero non furono anatema, e ei souo fratelli, ben cari fratelli : ma la loro con- seguenza cola andrebbe a parare, ed ecco perch e nella vigna del vera non potea mettere radice, — eradicabitur." — Taparelli, ib. 1435, note. (/c) Grotius (JDe Imp. circa sacra) cites with approbation the foUow- ng passage from Suarcz : " Semper autem servatum videtur ab homi- nibus ut licet particulares magistratus Civiles et Sacerdotales diversia hominibus tribuerentur, quia varietas actionum istam diatinotionem pos- tulabat, nihilominus suprema potestas utriusque ordinis, prsesertim quoad leges ferendas, in uno Principe collocaretur. Et ita Regibus et Impera- toribus semper tributa fuit hsec potestas in Romana urbe et imperio, ut ex historiis constat. Idemque de aliis commuuitatibus verisimile est." — Tract, de leg. ^x: 1. ii. qu£e. 29, art. iii. 332 INTERNATIONAL LAW. reason of the thing (J); and whether the most extravagant claims have not been the legitimate consequences of the premisses laid down by the Curia Romana. It will be seen that the double condition of the Pope, as spiritual chief and temporal prince, has greatly complicated a question suffi- ciently difficult under a single aspect. CCLXXXVIII. When the seat of empire was trans- ferred to Constantinople, even this homage of comity, so to speak, was materially diminished. Theodosius II. indeed inserted an ordinance in his Code, that all nations subject to him should receive the faith which Saint Peter had delivered to the Romans ; and Valentinian III. forbade the bishops of the provinces to depart from ancient usages with- out the sanction of the Venerable man, the Pope of the Holy City (m). Nevertheless, the effect of the division of the Empire was to leave the Bishops of Rome practically without the pro- tection of the Emperor, though, theoretically, he retained his pretensions both to the territory of Italy and to the allegiance of the Roman See. The generals of Justinian in the middle of the sixth century delivered Italy from the dominion of the Ostrogoths ; but within twenty years from the period of the victory of Narses in Campania (w), a new foe, the Lombards, from the North of Germany, conquered the upper part of Italy, and planted himself at Pavia (o). It was not long after this period that Pope Gregory the (I) Vide ante, vol. i. c. iv. (m) Codex Theodos. xvi. 1-2. JDie Somischen Ptipste, ihre Kirche und ihr Staat, B. i. c. i. Planch, Geschichte der christlich-kirchlichen Gesellschaftsverfassung, i. 642. Theodosius II. published hia Code a.d. 435. Valentinian III. reigned from A.D. 424 to 455. — VArt de Verifier Us Dates. (n) Belisarius was recalled a.d. 549 ; Narses destroyed Tejas, the last Gothic king of Italy, A.D. 653. Justinian died, a.d. 565. (n) A.D. -572. THE CHDRCH UNDER CONSTANTINE. 333 Great, who had in vain besought the Emperor Maurice not to confirm his election, became, by the force of circumstances and against his will, a temporal prince, and the Protector of Civil and Spiritual Rome against the foreigner and the Arian. Then were laid the foundations of the mediteval papacy. But we must hasten onwards. CCLXXXIX. Of all the German races which had raised their rude and vigorous nationality upon the crum- bling and corrupt civilisation of the Eoman Empire, the Franks were for a long period the foremost and the most powerful in Europe; they too were among the first bar- barians who embraced Christianity, and their subsequent connexion with the Patriarch of Eome laid the first foundations of that system the consideration of which must occupy an important place in a work upon International Law. CCXC. The monarchy founded by Clovis(;j) included nearly the whole of Gaul and the greater part of what is now called Germany. In the hands of his successors, the newly-founded kingdom was divided and brought to the verge of dissolution, but the Mayors of the Palace grafted the energy and talent of the Carlovingian upon the decaying stock of the Merovingian dynasty {q). Pepin d'Heristal reunited the kingdom which he governed, though without the title of King ; as did his illustrious son, Charles-le-Martel (r), who earned the gratitude of Christen- dom by delivering («) her from the aggressions, till then re- sistless, of the infidel Saracen. Pepin-le-Bref, the son of Charles, added to the real power of the monarchy the title of King ; which, for sixty-five years, the Carlovingians had allowed to decorate the puppets in whose name they ruled. Pepin-le-Bref ( ?) took a step fraught with the most important ip) A.D. 485. {q) A.D. 687, the date of the victoiy by which P(5pin reunited Austria (()este)-feich) and Neustria {Westerreich). (rl A.D. 714. (s) A.D. 7.S2, 7.37, at Poitiers and Narbonne. {t) A.D. 752. 334 INTERNATIONAL LAW. consequences, both to the future relations of the Church and State in France, and to the international relations of every State with the See of Rome : he invoked the aid of religious sanction to secure his throne, and, first of the Frank Kings, caused himself to be crowned iu the Cathedral of Soissons, by St. Boniface, the first Archbishop of Mayence. St. Boniface, himself an Anglo-Saxon, was devoted to the Roman See. He persuaded the bishops, not only in Germany, but in Gaul, where they appear to have been previously independent, to acknowledge submission to the successors of St. Peter at Rome. At the time of Pepin's coronation, the Roman See was in the deepest distress. The King of the Lombards (2«) had seized upon the Exarchate of Ravenna, where the last remnant of the authority of the Greek Emperor remained, and threatened Rome with destruction. Stephen II., the then Bishop of Rome, appears to have first endeavoured to renew his relations, long practically se- vered, with the Greek Emperor (a;) ; but, as the danger became more and more pressing, he resolved to implore the assistance of the Franks, then renowned throughout Europe for their victories over the enemies of the Christian faith, and whose King, as St. Boniface had written, alone enabled him to execute his apostolical mission in Germany ivith safety or effect (y). CCXCI. The consequences of this resolution have ever since affected the destinies of the world. The compact between the spiritual and secular Powers of Western Europe (z) was soon adjusted; the necessities of both arranged without difficulty the terms. Stephen II. consecrated Pepin anew in the Church of St. Denis, and at the same time also his two sons Charles and Carloman ; he absolved the con- secrated usurper from the oath of allegiance which he had (?() Astolphus. (.r) A.D. 751. (y) JRanke, b. i. c. i. (2) Koc/i, Tahhait dei Iib\. "Further Correspondence," &o., 'p. 2. Hesse- Cassd, Nassau, &c. (») Phillipps, iii. 532. Pari. Papers, 1861. " Further Correspondence," &c., p. S. ROME AND GERMAN PROTESTANT STATES. 457 Eioman See is mentioned, except in the iBfth, which declares that all Koman Bulls and Briefs must receive the sanction of the Sovereign, and that Bulls which have received it are only- binding so long as nothing contrary to them shall have been enacted by the State ; that the sanction of the State is necessary not only for present but for former Papal ordin- ances, if it be iutended to use them. Otherwise aU reference to " foreign " authority is forbidden, and the " Metropolitan " is spoken of throughout as the ecclesiastical superior. By Article 3 — " Every State exercises its inalienable " sovereign right of protection and superintendence (Majes- " tatsrechte des Schutzes und der Oberaufsicht) over the " Church to its full extent." By Article 8 — " The Metropolitan constitution is re-esta- " bHshed according to its original intention, and the exercise " of the Metropolitan rights belonging to the Archbishop " are under the united protection of the collective States." By Article 10 — " The Church disputes (kirchliche Streit- " sacheri) of Catholics may in no case be carried out of the " province, or before foreign judges ; and therefore, in their '' respect, the necessary regulations will be made." By Article 15 — " No ecclesiastic can be elected Bishop " who is not a German by birth and a citizen of the State in " which the vacant episcopal see is situated, or of one of the " States which have united to form such diocese." By A-rticle 16 — " The Bishop-elect is to apply to the " Superior of the Church for information immediately after " the election. Prior to consecration he is to take the oaths " of fidelity and obedience, in his quality of Bishop, to the " Sovereign of the country." By Article 17 — " After having received consecration, " the Bishop enters into full exercise of the rights and duties " connected with the episcopacy, and the Governments will " not suffer him to be impeded ; on the contrary, they will " effectually protect him." By Article 22—" Taxes or rates, of whatever kind they " may be, or by whatever names they may be called, shall 458 INTERNATIONAL LAW. " not be raised either by our own or by foreign ecclesiastical " authorities." By Article 33 — " No ecclesiastic can accept any digni- " ties, pensions, decorations, or titles from foreigners without " the consent of his Sovereign." By Article 34 — " Every ecclesiastic, before he receives " the Church ordination, shall take the oath of fidelity to the " Head of the State, and swear canonical obedience to the " Bishop." By Article 36 — " The ecclesiastics as well as the laity " have the right of appeal to the State authorities, whenever " an abuse of the ecclesiastical authorities takes place against « them." CCCXCVIII. The object of these regulations is mani festly to form a national Catholic Church. The Pope remonstrated in a letter directed to the Arch- bishops of the provinces, beginning " Pervenerat non ita," complaining of ecclesiastical assent having been given to many of the provisions, and of a breach of the alleged con- vention between the Princes and the Roman See. The Bishops of the Upper Rhine more lately demanded a repeal of many secular provisions concerning the Church, and claimed a right of free communication with Rome (o). In Baden laborious negotfations for three or four years preceded the Concordat of 1858, which when at last com- pleted excited much discontent in the country {p). CCCXCIX. Saxony presents the solitary instance of a Roman Catholic Sovereign over a Lutheran people — a state of things exactly reversed in Belgium. CCCC. In the fifteenth century, the Prince and the people of Saxony embraced the Evangelical Protestant Religion (y). (o) Phillipps, Band iii. App. Pari. Papers, 1851, " Further Correspondence." Gazette de Hanau, 1851 (before June), {p) Ann. des D. M. 1858-59, p. 208, (q) Pari. Papers, 1851, p. 223, PAPAL RELATIONS WITH SAXONY. 459 The provisions of the Treaty of Passau (1552), of the Peace of Augsburg (1555), and of the additional articles to the Treaty of Westphalia, were strictly applied to Saxony, During the existence of the Imperial Diet, Saxony was President of the " Corpus Evangelicorum,' the politically- recognised part of the Imperial Representation. Upper Lusatia was acquired by the Electoral House of Saxony in 1635, at the Peace of Prague. In this province the Roman Catholic Religion prevailed, and the preserva- tion of its rights was confirmed by the Elector. Augustus the Strong acquired the Crown of Poland, and embraced the Roman Catholic Faith ; but he secured to his country, by what is called ' the Reservation ' (Reservalien), all its rehgious rights. Till 1697 the Roman Catholic Faith was only tolerated in Saxony. By Article V. of the Treaty of Posen, and by mandate of the 16th of February, 1807, Roman Catholics and Evangelists were placed on an equality as to their religious worship, and as to their civil and political rights. But the relation of the Roman Catholic Church to the State, and its fixed govern- ment, were estabhshed by a law promulgated on the 19th of February, 1829. This law gave an organic construction to the Roman Catholic Church without any Concordat from the See of Rome. In the old hereditary dominions there is an Apostolic Vica- riate, to which office the Pope appoints one of the native clergy proposed to him by the King. The Apostolic Vicar takes an oath of allegiance to the King. In Upper Lusatia the episcopal duties are performed by the Dean at Bredissin or Bautzen ; the Dean is chosen by the Chapter and confirmed by the King (r). There are no bishoprics in Saxony. When the Pope M The Apostolic Vicar and the Dean are generally united in the same person who is made a Bishop in partibus. He must take the oath of ohedience to the Constitution of 1C31. 460 INTERNATIONAL LAW makes the Apostolic Vicar or the Dean a Bishop, it is in partibus infidelium. The Placet (s) is required for every notification of the Pope or the Apostolic Vicar. The right of the Placet is incident to the sovereignty of the State, whether the King be Boman Catholic or not. All ecclesiastical authorities are subject to the Depart- ment of Public Instruction (das Ministerium der Cultur). Complaints of the abuse ofthe ecclesiastical power are brought before this department and before the Cabinet. The arrangements entered into between Wurtemburg and the Papal See were the Bulls already mentioned of Provida solersque (August 16, 1821), Ad dominici gregis custodiam (April 11, 1827). By a Royal Ordinance of 30th January, 1830, all Papal Bulls and Briefs must obtain the royal sanction, and no former Bulls can be put in force without it. A Concordat was concluded with Wurtemburg in June 1857, which gave great privileges to the Wurtemburg Church. But the ecclesiastics of Wurtemburg remained subject to the common law, and the attempt to procure for them an ex- ceptional tribunal failed. The Pope submitted on account of the present condition of things (t). CCCCI. In Denmark (u) no communication since the Reformation has taken place with E-ome. At Copenhagen there is a Roman Catholic chapel, under the protection of the Austrian Government, who are bound by treaty to tolerate a Protestant chapel at Vienna. In Sweden and Norway {x) there is no arrangement of the nature of a Concordat subsisting between the Crown and Rome. From the time of Charles IX. to 1780, no Roman Catholic priest could legally officiate in the kingdom. The (s) The exercise of the royal supremacy {jns circa sacra) over the Church is settled by the Regulations of 1837 and 1845. (0 Ann. des D. 31. 1858-59, p. 265. («) Pari. Papers, 1851, p. 81. (x) Ibid. p. 307. PAPAL RELATIONS WITH SWITZERLAND. 461 Pope obtained toleration for the Roman Catholics when Gustavus III. visited Rome in 1780. No Papal Bull has ever been published in these dominions. CCCCII. There is no Concordat existing between the Swiss Confederation, as such, and the Roman See (y). The Federal Government does not interfere in any way respect- ing the appointment of Bishops, or the promulgation of Bulls or other instruments from Rome. These matters are regu- lated by the authorities of the respective Cantons, and the arangements relating to them are of various kinds. But although no uniform rule upon these matters prevails through- out Switzerland, the principle of requiring the sanction of the domestic authority in all cases where the See of Rome directly addresses itself to the subject of that authority, appears to be steadily adhered to. CCCCIII. The Bishops in the Roman Catholic Cantons are appointed either directly by the Cantonal authorities, or subject to their approbation, and the publication of Papal Bulls and instruments is not permitted without the previous placet of the Government, (z) CCCCIV. There was a formal Convention (a) entered into between the Pope and the Canton of St. Gall, relative to there-organisation of the Bishopric of St. Gall, in 1845 (h). This appears to be the only instance of any kind of Concordat between the Roman See and any of the Swiss Cantons. After this Convention a Bull was issued in 1847 (c), and was sanctioned by the placet of the Landamman and Executive Council of the Canton of St. Gall in an act (y) Pari Papers, 1851, p. 321. (z) The Valais appear to be the only exception ; in it Bulls, &c., are published without the placet of the Government. (n) Pari. Papers, " Further Correspondence," p. 51. (5) See p. 61. ibid, for the Bull relative to this bishopric, beginning " Instabilis rerum humanarum memoria." (e) Ibid. pp. 72, 73. The Act of the State of St. Gall. " Der Eingangs erwahnten Bulla, welche anfangt ' Instabilis ' u. s. w., wird an uiit das ob- rigkeitliche Tlazet ertheilt," &c. 462 INTERNATIONAL LAW. which carefully guarded " the sovereign right which belongs " to the State in reference to the Catholic body." In 1824 {d), on the occasion of the establishment of the Double Episcopal See of Coire and Gall, without notice given to the State, or its consent being obtained, the Great Council passed a resolution refusing to recognise the nego- tiation sequestrating the temporalities of the Bishopric of Coire, and declaring to the Prince Bishop of Coire that the State considered " every Bishop of Coire, both according to " legal principles and special agreements with the Episcopal " See, and the existing laws, to be, in every temporal " respect, as much dependent upon the same as other Chris- " tian Sovereigns considered their Bishops to beP In 1834 (e) the President and Great Council of the Canton of Lucerne put forth a law subjecting to the ■placet of the State " Eoman Bulls, Briefs, and other en- " actments." In 1850, the Great Council of the Canton of the Grisons promulgated an Ordinance declaring, among other things, " That all regulations and enactments of ecclesiastical " authorities of both religions, intended to reach the people, " directly or indirectly, shall be submitted to the inspection " of the Executive, prior to their being promulgated, com- " municated, executed, or applied " (/). This law is enforced by the penalties of fine and imprisonment. CCCCV. The reorganisation of the Bishopric of Basle {g) 1828-1830, was eiFected upon the principle of " Episcopal " Concordats " and " Pai)al Demarcation Bulls," recognised by special " State sanctions " of the respective Governments " Genannte Bulle soil, sowolil in ihrem Urtexte als in der von iins an- erkannten deutschen Uebersetzung, in die Sammlmig der Gesetze und Besohliisse aufgenommen werden." (ff) Fmi. Papers, 1851, " Farther Correspondence^' p. 74. (e) Ibid., p. 75. (/) Ihid. p. 77. (g) Ibid. pp. 78, 153. See especially the Historical Memoir {Vorrcde), p. 78; translated, p. 153. PAPAL RELATIONS WITH SWITZERLAND. 463 of the Cantons. One of the most curious instances of the jealousy with which the Swiss have regarded whatever was supposed to be an ecclesiastical encroachment upon the civil power, is to be found in the address of the old Patrician Government of Fribourg to the Bishop of Fribourg, com- plaining of the publication by him of directions concerning the observance of Lent, without the knowledge or consent of the Grovemment (A). The language in which the Fribourg Government enunciates the principle on which it relies is remarkable : '' II est dans la nature des choses, il est de " I'essence de la souverainete, et I'ordre public reclame im- " perieusement que tout acte, quelle qu'en soit la source ou " le but, ne puisse ^tre public dans un Etat sans I'agrement " de I'autorite souveraine. Cette regie, si intimement liee " au bien de la society, a ete observee, votre Grandeur ne " saurait I'ignorer, dans les Etats les plus attaches a la " religion catholique, et qui par consequent respectaient le " plus les droits de I'Eglise." (K) Ibid. p. 228. 464 INTERNATIONAL LAW. CHAPTER IX. THE INTERNATIONAL RELATIONS OF THE PAPACY WITH STATES IN WHICH A BEANCH OV THE CATHOLIC CHURCH, NOT IN COMMUNICATION WITH ROME, IS ESTABLISHED. CCCCVI. We have now to consider the relations of the Papacy with those States in which a branch of the Catholic Church is established (a). These Catholic Churches are distinguished from Roman Catholic Churches by not acknowledging the Pope as their spiritual chief, and from merely Protestant Churches by their Episcopate ; or, as it is clearly said by Portalis, " Toutes les communions " protestantes s'accordent sur certains principes. Elles " nadmettent aucune hierarchie entre les pasteurs " (6). The established Catholic Churches not in communion with Rome are two : — 1. The Greek Church. 2. The English Church, and, as connected with if. The English Church in the Colonies, the Episcopalian Church of Scotland and of Ireland, and the North American Church. These are not established, in the sense of being endowed by the State. CCCCVII. It does not lie within the province of this work to dwell upon the history of that great schism between the Greek and Latin Churches which made the first external rent in the seamless robe of the Church. (a) Pari. Papers, 1819, p. 254. Ibid. 1851, p. 173. (i) Sapport du Vicointe Portalis sur les Articles orffaniqties des Cultes protestants. Discours, etc., .mr le Concordat de 1801, ^m- le Vicomte Portalis (Paris: 1845), p. 105. PAPAL RELATIONS WITH RUSSIA, THE PORTE, ETC. 465 The Greek branch of the Catholic Church is said to number eighty millions of worshippers. It is established in the countries subject to the Porte, Russia, and Greece, In all these countries the Koman See fosters a separate com- munion. CCCCVIII. Russia has no Concordat with the Pope^ but certain articles were agreed upon in 1847, between them, which regulate the appointment of Roman Catholic prelates. They are nominated by the Emperor, who communicates his choice confidentially to the Pope, who, if he entertain no objection to it, canonically institutes the imperial nominee. But all direct communication between the Pope and the Roman clergy in Russia is interdicted ; the only channels through which it is allowed to be carried on being the Russian mission at Rome and the Department of Foreign Affairs at St. Petersburg. This department and that of Foreign Worship (which is under the jurisdiction of the Minister of the Interior), examine every instrument emanat- ing from Rome before it can be delivered to the clergy of that see. The present practice of the Russian Government is to decline the reception of any Nuncios or Papal Legates at St. Petersburg, except such as are sent on special missions. In Poland the Pope, in 1858, vainly endeavoured to negotiate a Concordat for the Roman Church in Poland with the Emperor of Russia. In the Diocese of Chelin and other dioceses the Clergy of the United Greek Church became merged in the Orthodox Greek Church (c). CCCCIX. No Concordat, or arrangement in any way equivalent or analogous to it, subsists between the Sublime Porte and Rome. The Roman Vicar Apostolic resident at Constantinople is not recognised by the Turkish Govern- ment. The Roman Bishops are either appointed or confirmed (c) Am. des D. M. 1858, p. 267. VOL. IL H H 466 INTERNATIONAL LAW. by the Pope, and Papal instruments are transmitted to them from Rome, either directly or through the unrecognised Vicar Apostolic ; but no Papal Brief can be legally enforced, and the Pope appears to connive at the exercise of spiritual authority by the Roman communities in Turkey, but to re- serve to himself the right of interference {d). CCCCX. The relations of the National Church of Greece with the Patriarchate of Constantinople will be mentioned in the next chapter. Between the Kingdom of Greece and the See of Rome there exists no Concordat, or equivalent arrangement. The Latin population appears to be diminishing, though in some of the islands, inhabited by the descendants of the old Venetian and French settlers, the Latin Bishops exist in a number at present disproportioned to their congre- gations. The Pope directly appoints Bishops of the Latin Church, who apply to the Minister of State for their exequatur, which, it appears, has never been refused. The Pope does not appear to be compelled, to nominate natives to the Latin sees, though the existing Latin Bishops are natives. The reception and publication of Papal instruments is not forbidden by any law, but, as a matter of fact, communica- tions from Rome are carried on through the medium of a private correspondence. The Latin Church founds its rights on long custom and enjoyment guaranteed at the Revolution, which guarantee was recognised by the National Assembly in 1843, at the period of the formation of the Constitution. The Bishops are required to take the oath of allegiance to the King, and of fidelity to the Constitution. (d) " The appointment of Bishops," writes Sir Stratford Canning, " is at once a matter of conflicting pretensions, and of mutual though tacit compromise between the Court of Rome and the several Roman Catholic communities." — Pari. Papers, 1851, p. 323. PAPAL RELATIONS WITH ENGLAND. 467 CCCCXI. The history of the relations of the Komau See ■with England, since the Reformation, is without parallel in the annals of the world. Before the Reformation, these relations of England with Eome were not unlike those which subsisted between the Papacy and other considerable independent kingdoms. In the history of no kingdom is the independence of the national Church written with a firmer character than in that of England, in the statutes of the realm, the decisions of judicial tribunals, and the debates of Parliament. The Constitutions of Clarendon, in Henry II.'s reign (a.d. 1164), though directly aimed at the repression of the inordinate claims and privileges of the national-Church, were, no doubt, indirectly " calculated," as Hume observes, " to " establish the independency of England on the Papacy ; " and therefore, when the King sought Pope Alexander's ratification of them, that Pontiif annulled and rejected all but six out of the sixteen memorable articles. The resist- ance of Becket, and, still more the general feeling excited by the wicked and impolitic murder of that prelate, pro- cured the practical abrogation of the articles objected to, by the enactments of Edward I. (e) and III., of Richard II., of Henry IV. and V., and of Edward IV. CCCCXII. In the severe penalties attached to the statutes of Provisors and Prcemunire may be read the steady deter- mination of the English people to maintain an independent national Church, and to resist the ultramontane doctrines which had taken root in other countries. The Statute of Provisors (25 Ed. III. st. 4, a.d. 1350) recites that " the Holy Church of England was founded in the " estate of prelacy within the realm of England " by the King and nobles of England, and forbids the prevalent abuses of the Pope's bestowing benefices upon aliens, " benefices of England which be of the advowry of the people of Holy Church," the reservation of first-fruits (e) See tlie provisions of the Parliament at Carlisle, a.d, 1307. H H 2 468 INTERNATIONAL LAW. to the Pope, and the provision or reservation of benefices to Rome. By 38 Ed. III. st. 2. (a.d. 1363), persons receiv- ing citations from Rome in Courts pertaining to the King, &c., are liable to the penalty of 25 Ed. III. st. 5. c. 22. (/) The Statute (a.d. 1392) 16 Richard II. c. 5, renders (/) 38 Ed. III. St. 2, A.D. 1363. " Prmmunire for suing in a foreign realm, or impeacHng of j udgment given." Prcemunire, so called from the words of the writ : — " Rex vice comiti," &c., "prcBmunire facias prsefectum A.B. quod tunc sit coram nobis." 25 Ed. III. St. 6. c. 22. a.d. 1351. Against Provisors. Now repealed. There are various statutes of Richard II. against giving benefices to aliens, or allowing aliens to purchase or convey benefices, viz.: — 13 Rich. II. st. 2, c. 2, is a confirmation of the statute of 25 Ed. HI. St. 4. See too c. 3. 16 Rich. II. c. 5, A.D. 1392, made it Frcsmunire to purchase Bulls or other instruments from Rome. This statute was called by the Pope execrabile statutum, and the passing of it fcedum et iurpe f acinus. — Burn's Ecclesiastical Laio, II, 36 (ed. Phillimore). See also, generally, as to Papal authority — 2 Hen. IV. c. 3, a.d. 1400. 3 Hen. V. st. 2, c. 4, a.d. 1415. 32 Hen. VI. c. I (Ireland), a.d. 1454. All statutes agMnst Provisors in England and Ireland to be kept in force. 7 Ed. IV. e. 2 (Ireland), a.d. 1467. Against Bulls from Rome. 2 Ed. IV. c. 3. 10 Hen. VIII. c. 5. An Act against Provisors to Rome. 23 Hen. VIII. c. 20. An Act restraining payment of Annates to the See of Rome, a.d. 1531. 24 Hen. VIII. c. 12, a.d. 1532. The great Statute forbidding Appeals to Rome, under pain of Prcefnunire. 25 Hen. VIII. c. 19, a.d. 1533. Act of the Submission of the Clergy and the Restraint of Appeals. . c. 20. Act for Non-payment of Eirst-fruits to the Bishop of Rome. ■ c. 21. Concerning Peter-pence and Dispensations. 28 Hen. VIII. c. 13 (Ireland), a.d. 1537. An Act against the Autho- rity of the Bishop of Rome. c. 16, A.D. 1536. As to Dispensations and Licences heretofore obtained from the See of Rome. c. 19 (Ireland), a.d. 1537. The Act of Faculties. 5 Eliz. c. land 13 Eli/., c. 2 brought the maintaining the pre-eminence of the See of Rome under the penalties of the Statutes of Pruvisors and Pramunire. PAPAL RELATIONS WITH ENGLAND. 469 the procuring of Bulls from Rome liable to Pramunire, and it recites a variety of Papal aggressions upon the privileges of the Crown: among other matters, as to the translation of Bishops out of the realm, or from one bishopric to another within the realm, and the carrying of treasure out of the realm, " and so the realm, destitute as well of counsel as of " substance, to the final destruction of the said realm, and " so the Crown of England, which hath been so free at all " times that it hath been in no earthly subjection, but " immediately subject to God in all things touching the " regality {la regalie) of the same Crown, and to none other, " should be submitted to the Pope, and the laws and statutes " of the realm by him defeated and avoided at his will, in " perpetual destruction of the sovereignty of the kingdom of " the King and Lord, his crown, his royalty, and of all " his realm, which God defend." This statute before the Reformation, and the subsequent enactment of 24 Henry VIII. c. 12, and the famous case of Cawdry (^), may be said to contain the whole Constitu- tional Law of England upon the subject of the usurpation of the Papal See, upon the liberties of the national Church, and in regard to the authority and privilege of the English Crown. CCCCXIII. It would be difficult to conceive a clearer or more dignified exposition of the law upon this subject than is contained in the prefatory part of the statute of Henry VIII. " Where by divers sundry old authentick histories and " chronicles, it is manifestly declared and expressed, that ' this realm of England is an empire, and so hath been " accepted in the world, governed by one supreme head and " King, having the dignity and royal estate of the imperial " crown of the same ; unto whom a body politic, compact of " all sorts and degrees of people, divided in terms, and by " names of spiritualty and temporalty, been bounden and {g) 5 Cuke, 8. 470 INTERNATIONAL LAW. " owen to bear next to God a natural and humble obedience ; " he being also institute and furnished, by the goodness and " sufferance of Almighty God, with plenary, whole, and " entire power, pre-eminence, authority, prerogative, and " jurisdiction, to render and yield justice and final determi- " nation to all manner of folk, resiants, or subjects within " this his realm, in all causes, matters, debates, and conten- " tions, happening to occur, insurge, or begin within the " limits thereof, without restraint or provocation to any " foreign princes or potentates of the world; the body " spiritual whereof having power, when any cause of the " law divine happened to come in question, or of spiritual " learning, then it was declared, interpreted, and shewed by " that part of the said body politic called the spiritualty, " now being usually called the English Church, which " always hath been reputed, and also found of that sort, " that both for knowledge, integrity, and sufficiency of " number it hath been always thought, and is also at this " hour sufficient and meetof itself, without the intermeddling " of any exterior person or persons, to declare and determine " all such doubts, and to administer all such offices and duties " as to their rooms spiritual doth appertain ; for the due admi- " nistration whereof, and to keep them from corruption and " sinister affection, the King's most noble progenitors, and " the antecessors of the nobles of this realm, have sufficiently " endowed the said Church, both with honour and posses- " sions ; and the laws temporal for trial of property of " lands and goods, and for the conservation of the people of " this realm in unity and peace, without rapine or spoil, was " and yet is administered, adjudged, and executed by sundry " judges and ministers of the other part of the said body " politic, called the temporalty ; and both their authorities " and jurisdictions do conjoin together in the due adminis- " tration of justice, the one to help the other." CCCCXIV. At the period of the Reformation, the na- tional Church introduced an express denial of the authority of the Pope, henceforth called in all public acts and docu- ENGLAND AND EOME. 471 ments the Bishop of Rome, into her articles and canons, and an acknowledgement of the temporal supremacy of the Crown over the Ecclesiastical as well as the Civil State. Henry VIII. (h), was excommunicated, and in the Bull his subjects were commanded to renounce their allegiance, and the nobles were ordered " sub ejusdem excommunica- " tionis ac perditionis bonorum suorum poenis," to unite with all Christian Princes in expelling Henry from England. Elizabeth {f) was excommunicated in pretty similar terms, but not until twelve years after her accession. In answer to a request from the Emperor and other Roman Catholic Princes that she would allow the Roman Catholics places of worship, she replied that she would not allow them to keep up a distinct communion, alleging her reasons in these re- markable words, " for there was no new faith propagated in " England : no religion set up but that which was com- " manded by our Saviour, practised by the primitive " Church (A), and unanimously approved by the fathers of " the best antiquity " (Z). The Roman Catholics, both in England and Ireland, outwardly conformed to the services of the Church for about ten years (m). Both this fact and the ground of Queen Elizabeth's refusal are remarkable, and not without their bearing, as consider- ations of International Law, upon the question of the Papal aggression in England, in 1851. CCCCXV. As the Jesuits pursued their machinations (h) Damnatio et Excommunicatio Henrici VIII. Regis AvglicB, ejusqiie fautorum, &c. (edita a.d. 1535 et 1538). Thia is printed at length in the Appendix to the Bndum Falmen, or the Bull of Pope Urn V. con- cerning the Damnation, Excommunication, and Deposition of Qtieen Eliza- leth ; and the Bull of Pope Paul III. against Henry VIII, by Thomas IBarlow'], Lord Bishop of Lincoln. (London : 1681.) («■) Accession, a.d. 1568 ; excommunication, a.d. 1570. {k) The English Church has always held the doctrine of St. Cyprian, " Episcopatus unus e&t, cujus a singulis in solidum pars tenetur."— .Z)e Unitale Eccks. (London), 641. (J) Collier's Eccles. Hist, of Great Britain, vol, vi. pp. 263, 264 : vide ante, p. 330, note (/»)■ (mj) Collier's Eccles. Hist., vol. vi. p. 264. . 472 INTERNATIONAL LAW. against Elizabeth, she had recourse, by way of defence, to the severest statutes against the Papal power, enacting that the attributing by act or speech any such authority or jurisdic- tion to the Bishop of Rome as he had heretofore claimed should be punishable with PrcEmunire, CCCCXVI. In the year 1827, long after the Pope had been restored to the Vatican, in great measure through British money and British arms, this statute of Elizabeth was held by the law officers of the Crown to be still in force, and actually to prevent Mr. Canning (then Secretary for Foreign Affairs) from replying to a letter sent to him by the Pope announcing his succession to the Pontificate (w). From the reign of Elizabeth till the recent Act of Victoria, all legal channels of communication — we pass by the illegal exception of James II.'s reign — between Great Britain and the See of Rome were closed, — a fact in history almost incredible when it is remembered that in Ireland alone there were many Roman Catholics. CCCCXVII. (o) William III. introduced that barbarous code of persecuting laws against the Roman CathoKcs which disgraced the statute-book of this country until the reign of George III. ; which made Ireland, according to Mr. Burke's expression, " full of penalties and full of Papists " (j)); and which as entirely failed in its object of eradicating Papacy as the Inquisition had failed in destroying Protestantism. Since the alterations which the law has undergone during the reign of the present Sovereign, it is questionable whether any civil penalty attaches to the acknowledgement of the Pope. CCCCXVIII. The national intercourse with the See of («) Mr. Canning's speech on the Roman Catholic question, March 6, 1827. (o) In Collier's Eccles. History, vol. ix. p. 365, wiU be found Paul V.'s Brief to the Roman Catholics forbidding their going to the English service, or taking the oath of allegiance, A.D. 1606 ; and Cardinal Bellar- mine's letter to the Archpriest. (p) Tracts on the Popery Laws, Burlce's Works, vol. ix. George Blackwell, against the Oath of Allegiance, a.d. 1607, p. 366. ENGLAND AND ROME. 473 Eome became lawful in 1848 by the statute of Victoria which enacts : — " 1. That, notwithstanding anything contained in any Act " or Acts now in force, it shall be lawful for Her Majesty, " her heirs and successors, to establish and maintain diplo- " matic relations, and to hold diplomatic intercourse, with " the Sovereign of the Roman States. " 2. Provided always, and be it enacted, that it shall not " be lawful for Her Majesty, her heirs or successors, to " receive at the Court of London, as ambassador, envoy '' extraordinary, minister plenipotentiary, or other diplomatic " agent, accredited by the Sovereign of the Roman States, " any person who shall be in Holy Orders in the Church of " Rome, or a Jesuit or member of any other Religious " Order, Community, or Society of the Church of Rome, " bound by monastic or religious vows. " 3. Provided always, and be it enacted, that nothing " herein contained shall repeal, weaken, or affect, or be con- " strued to repeal, weaken, or affect, any laws or statutes, " or any part of any laws or statutes, now in force for pre- " serving and upholding the supremacy of our Lady the " Queen, her heirs and successors, in all matters civil and " ecclesiastical within this realm, and other Her Majesty's " dominions, nor those laws, or parts of laws, now in " force which have for their object to control, regulate, " and restrain the acts and conduct of Her Majesty's " subjects and to prohibit their communications with the " Sovereigns of foreign States on the said matters, all " which laws and statutes ought for ever to be maintained " for the dignity of the Crown and the good of the sub- «ject"(•) Devoti, i. 172, xxix. xxxii. 0. Tiii. X. Be Of. Leg. C. iii. iv. vi. ix. X. Ihid. C. XX. X. De Jure Patron. C. i. ^'I. De O/. Leg. C. xxiii. X. De Frivileg. PAPAL LEGATES. 497 the whole Church of Christ is committed to the charge of the Pope, and as he cannot be present everywhere, it is necessary that he should have deputies armed with his authority and jurisdiction, and hence the institution oi Legates (s). Legates are of three kinds : — 1. Legati a latere. 2. Legati missi or Nuntii. 3. Ijegati nati. CCCCXXXVI. Legati a latere (t) are Cardinals whom the Pope has sent, as it were, from his own side, either to foreign Princes, or into provinces of the Roman See, clothed with the most ample authority. In the Decretals, powers nearly if not quite equal to those of the Pope («) are con- ferred on these Legates, and it is provided that they shall continue after the death of the Pope. They were authorised to convene and preside over Councils, with a vote equivalent to that of the whole assembly, to suspend and depose bishops, and to make laws. These extravagances were partly the fruit of the Council of Trent (x), but the laws and practice of independent States have so curtailed and limited them (?/) that the office has fallen into desuetude. Nevertheless, after the desolating storm of the first Revolu- tion had passed over the Galilean Church, and Napoleon had again opened communications with Rome, Pius VII. sent Cardinal Caprara, in the character of a Legate a latere, to France. The French Government admitted him, and vnth (s) For their early history, see Tliomassinus, Discipl. pt. i. 1. ii. cc. 113, 119. De Cardinalibus et Legaiis. (i) X. I. 30. Sext. I. 15. De Off. Leg. (u) Cap. Aatiqua, 23. De Privileg. (.r) Sess. xxiv. c. xx. De Ref. ly) " Aucun individu, se disant Nonce, Legat, Vicaire, ou Commissaire apostolique, ou se pr^valant de toute autre denomination, ne pourra, sans I'autorLsation du Gouvernement, exercer siir le sol fran9ais, ni ail- leurs, aucune fonction relative aux affaires de I'Egliae gallicane." — Artie. organiques, art. ii. Walter, Kirclienrecht , s. 143. Thomass. Dticip. tibi supr. VOL. II. K K 498 INTERNATIONAL LAW. very large honours, which, however, they partially circum- scribed by denying to him the faculty of acting by delegate {suhdelegandi) {z). These Legates are ambassadors of the first rank. CCCCXXXVII. Legati missi, or Nuntii, are Papal ambassadors appointed for the execution of some particular business in foreign parts, with powers limited by their cre- dentials. Nuntii Apostolici are resident Papal ambassadors at foreign Courts (a). Nuntii are ambassadors of the second rank, thouo-h some- times furnished " cum potestate Legati a latere." Internuntii are those who are appointed provisionally, or who are resident in provinces in which the Sovereign is not present. These are ambassadors of the third rank. For the transaction of matters of minor moment Ablegati are sometimes dispatched from Rome. The chief duties of the Legate or Nuncio are, to watch over the interests of the Eoman See, to apprise the Pope of all matters of moment passing at a foreign Court, and to obtain canonical information respecting the Bishops nomi- nated by the Crown (b). They have no jurisdiction unless by the permission of the State to which they are sent (c). (a) The Papal letters, " Qui Christi Domini" conferred on tlie Legate " potestatem constituendi novas Ecclesias GaUiarum : singularum Dioe- cesium fines determinandi : proliandi statuta capitulorum, eisque conce- dendi choralia insignia, quss iis couvenire arbitrabitui : parcBcias circuni- scribendi : procedendi per se ad constitutionem Ecclesiarum : dispensandi, condonandi : imo et suhdelegandi." — Lequauc, i. 380. SuUetin des Lois, III" Sei-ie, No. 1374. (o) Vide ante, p. 189, note (k), formerly apoeridarii or respoiisales, Nov. 123, 0. 25. " (J) "Nullum apud nos Nuntii jurisdictionis actum exercent." — Lequeux, i. 380. (c) " Ihre VoUmachten hangen von ihren besondern Instructionen, ibre Zulassung von der Regierung des betreffenden Landes ab." — Walter, Absohn. 144. C un. Extr. Cormn. de Consuet. i. 1, is now held contrary to the jits commune of the Church and of States. PAPAL LEGATES. 499 Their powers, therefore, no longer depend upon one general law, but upon the particular instructions given to them, and on the law and usage of the country to which they are sent. This has been the consequence of the dispute at the close of the last century with respect to perpetual or standing nuntia- turas (d). CCCCXXXVIII. The title of Legati nati (e) was con- ferred upon certain foreign dignitaries, to whose See or Crown the power and office of Legate was perpetually annexed. Such were the Archiepiscopates of Kheims, Bordeaux, and Lyons in France ; of Canterbury and York in England: of Toledo and Tarragona in the Spanish peninsula ; of Salzburg, Cologne, and Prague in Germany ; of Pisa in Italy ; the Crown of Hungary and the Crown of the Two Sicilies — apostolica regni SicilicB Legatiu (_/). In process of time it was found that the Papal power was rather weakened than strengthened by these perpetual and unchangeable Legates, and it is probable that the provi- sionary title is the only memorial of former authority which they now retain ; except, indeed, in the case of the Crown of Hungary, for Pope Sylvester conferred this privilege upon King Stephen {g) ; except, also, in the case of the King of the Two Sicilies. This privilege of the Sicilian Monarchy is founded upon a Bull of Urban II. to Eoger (1099), and was expressly confirmed by a Bull of Benedict XIII. (1728). The King used to e-aercise jurisdiction &s Jjeg&te through a special tribunal of his own {Monarchia Sicula). (d) Pachmann, Lehrhuch des Kirchenrechts, s. 182. (e) Bevoti, i. 175. (f) Walter, KircJienrecht, A-bschn. 144 : " Dock liangen nur Ehren- rechte davon ab." {g) " Sicli das Kreuz, als Zeiohen des Apostolats allenthalben vortragen zu lassen, und naoh dem Masse der gbttlichen Gnade, und als Stellver- treter des Papstes, die gegenwartigen und kiinftigen Erclien des \m- garischen Eeiches einzurichten, zu ordnen, und mit Vorziigen auszu- zeichnen." — Benedict XIV. Be Synod. Bide. 1. ii. c. vi. cited by Pachmann, s. 181. K K 2 500 INTERNATIONAL LAW. The Commissarius Apostolicus, sometimes called Delegatus, is an officer dispatclied by the Pope to obtain information upon a particular matter. The Vicarius Apostolicus is an officer through whom the Pope exercises authority in parts remote, and who is some- times sent with episcopal functions into provinces where there is no Bishop resident, or wliere there has been a long vacancy of the see, or in infidel or heretical countries (h). The Prtefecti Apostolici are officers of the same character, but without the power of exercising episcopal functions. CCCCXXXIX. There remains the question as to whether the Pope may be deposed for his offences, and by whom ? In the case of any other Sovereign, such a question would not properly be answered in any treatise on Inter- national Law. First, because it is a question rather of Public than of International Law ; and secondly, because it is neither prudent nor right to attempt to lay down rules for a case which, if it ever happen, must be superior to all rule, save that which the necessity itself may suggest and justify. But the character of the Pope as Universal Spiritual Chief gives foreign countries a direct interest in that question ; and, moreover, it is one which has under- gone consideration, and of which a solution has been attempted. Here, again, as in so many matters relating to the Pope, there are two distinct opinions maintained by ultra and cis- montane canonists. The former maintain the impossibility of the Pope's trial or deposition on account of his infaUibihty and of his superiority to every earthly tribunal. The latter hold the superiority of General Councils of the Church to the Pope, the possibility of his erring, and that he is not exempt from the jus commune whereto every Bishop or (h) The right to nominate these officers rests upon the Pope's claim to tmiversal jurisdiction, and on what is called by canonists the jui devoln- tionis. — Walter, ib. DEPOSITION OF THE POPE. 501 dignitary of the Church is canonically responsible for curtain offences, and that bad Popes have been lawfully deposed both by Emperors and by Councils. The Council of Basle distinctly asserted three proposi- tions : — 1. That a General Council was superior to the Pope, and that he owed obedience to it. 2. That he might be punished {debite puniatur) for disobe- dience to it. 3. That by this Council the Cardinals are enjoined to remonstrate first personally, then in their collegiate capacity, with an erring Pope, and lastly, to denounce him, if he do not amend, at the next General Council (i). " Non nostrum inter vos tantas componere litea." But it is necessary to add that, both in the convocation and in the proceedings of a General Council, all Christian nations must be interested. CCCCXL. In 1849, during the civil wars in Italy, the English Minister for Foreign Aifairs carried on a very important correspondence with our ambassador abroad, in which he made the following, among other observa- tions : — 1. That England would not, on account of her Roman Catholic subjects, view with indifference what was passino- in the Roman States (k). 2. That she desired that the Pope should occupy an inde- pendent temporal position, in order that he might not become the political instrument of any one European Power (I). 3. That there was, nevertheless, a great difficulty in making the Roman States an exception to the general rule (?) Ai't. ii. iii. vi. vide Koch, Sanctio Pragm, Sylloge Doc. pp. 112, 147. Can. Iviii. Dist. 50. Can. vi. c. xxv. s. 1. (Ii) Vide ante, vol. i. p. 530. {I) See the opinion of Portalis, Discours sur I' Orgnnisation des CuUes. Discours, etc., par le Vicomte F. Portalis, s. 33 (Paris i 1845), 502 INTERNATIONAL, LAW. of non-interference between any foreign people and their Sovereign. 4. That the position of the Pope differed from that of other Sovereigns, as he was elected by the College of Car- dinals, a body neither national in its constitution nor in its membership. 5. That the Pope ought to give his subjects securities for good government. 6. That for that object a separation should be made be- tween the spiritual authority and the temporal powers and institutions of the State. 7. That an armed intervention to assist the Pope in re- taining a bad Government would be unjustifiable (m). (?n) Correspondence between Viscount Palmerston, the Marquis of Nor- manhy, and Prince. Castalcicala, laid before Parliament, June 15, 1848 ; and see Correspondence affecting the affairs of Some, presented to Par- liament April 14, 1851, and 1870-71. PATRIARCH OF CONSTANTINOPLE. 503 CHAPTER XI. THE INTERNATIONAL STATUS OF THE PATRIARCHATE OF CONSTANTINOPLE (a). THE CHURCH IN THE KINGDOM OF GREECE — RELATIONS BETWEEN THE GREEK AND ANGLICAN CHURCHES. CCCCXLI. In the time of Pope Gregory the Great (b) (a.d. 595), and while Maurice was Emperor of Constanti- nople, John, the Patriarch of Constantinople, openly assumed the title of Universal Bishop, claiming thereby apparently a spiritual supremacy over the whole Christian world (c). The letters written by Gregory to the Emperor, to the Patriarch, and to certain Bishops, are among the most valuable monu- ments of Ecclesiastical History, and, indeed, of Ecclesias- tical International Law. These letters of this illustrious {d) prelate, in which he denies the right of any Patriarch or Bishop to arrogate to himself the title of Universal Bishop, and denounces the usurper of this foolish, offensive, and unchristian appellation as the precursor of Antichrist (e), will well repay the perusal (a) Walter's Kirchenrecht, ss. 168-173. Verfassung der Morgenldnd- ischen Kirche. — " Geschiehte der kirchlichen Trennung zioischen dem Orient und Occident. Von den ersten Anfdngen bis zur jiingsten Oegenwart." — Von Dr. A. THchler (Miinclieii, 1864), a work, in two volumes, of great erudition and research. (J) His Pontificate lasted from a.b. 500 to a.b. 604. (c) Vide ante, p. 332. \d) The blot upon his character is his adulatory letter to the wretch Phocas; but even Oihhon says that "Gregory might justly be styled the Father of his Country." — Decline and Fall, vol. vlii. p. 176 (ed. Milman). (e) L. vii. ep. xxxiii. : " Eundem vero fratrem et coepiscopum meum studiose admonere curavi, utai habere pacem omnium concordiamque desiderat ab stuUi vocabuli se appellatione compescat." ..." Ego autem fidenter dioo, quia quisquis se Universalem Sacerdotem vocat, vel vocari desiderat, in ehtione sua antichristum praciirrit, quia superbiendo se cseteris prseponit." 504 INTEKNATIONAL LAW. of all wlio take an interest in those events whicli combine some of the most remarkable features of civil and ecclesias- tical history (_/). CCCCXLII. More than a century passes away between the Pontificate of Gregory I. (the Great) and that of Gregory II. {(f) But both Popes were brought into especial contact with the Patriarchate of Constantinople. According to the opinion of Gibbon, certainly important on this point, the Patriarchs of Pome and Constantinople were at this time nearly equal in ecclesiastical rank and jurisdiction (A). But the Greek Patriarch was under the immediate yoke of a tyrannical Prince, which the distant Roman Patriarch had been long striving to shake off. When the imperial iconoclast, Leo, was making that assault upon the devotional use of images, which — trifling as it seems to the infidel historian — was fraught with serious consequences to the future peace of Christendom, he received from Gregory II. a letter, which contains a passage bearing upon the present subject: "Are you ignorant" (Gregory writes) " that the Popes are the bond of union, the mediators "of peace between the East and West?"(i) When the Ep. xxsi.: " Ut verbum superbue, per quod grave sccmdahim iu Ecclesiis generatur, auferre festinetis." Some expressions of tbe kind occur in most of the ten letters. (/) The reader is referred to : — Ijih. v. ep. xviii. {Ad Johamiem Eiiiscopum.') Ep. xix. {Ad Sahiniannm Diawmim.) Ep. XX. {Ad Mauruium Augustum.) Ep. xxi. {Ad Constantinam Avymtam.') Ep. xliii. {Ad Eulogium et Anastamim JBjiiscojws.') Lib. vii. ep. xxvii. {Ad Anastashim Episcopum.) Ep. xxxi. (Ad Ci/riacum Episcopum.) Lib. viii. ep. xxxiii. {Ad Maiiricinm Auffii^ttim.) Lib. viii. ep. xxx. {Ad Eulogium Episcopum Alexandrinum.') Lib. xiii. ep. xl. {Ad Cyriacum Patrinrchum Constantiitopol.) Saiicti Gregorii Papce I. Cognomento Magni Opera Omnia, t. ii. (Pariaiis : Sumptibus Claudii Rigaud, 1705.) {g) Extended from a.d. 715 to 731. (h) Decline and Fall, vol. ix. p. 131. {i) Gibbon, vol. ix. p. 136. At p. 104 lie has this note : " The two epistles of Gregory II. have heen preserved in the Acts of the Xice>ie PATEIAECH OF CONSTANTINOPLE. 505 iconoclast had ceased to reign, the power of the Byzantine Emperor in Italy had dwindled into the Exarchate of Eavenna, and was practically confined within the walls of that city. The restoration of the Western Empire by Charlemagne, which has been mentioned in the preceding pages (k), was followed by the separation of the Latin and Greek Churches. In what degree a diiference of religious opinion upon the most inscrutable of mysteries, national animosity, and arrogance on the part of Home contributed to produce that schism, which the lapse of ten centuries finds unhealed, it is not within the compass of this work to consider. In the turbulent period between a.d. 857-886, Pope Ni- cholas I. and the Patriarch Photius had mutually denounced and deposed each other. But it was not until a.d. 1054 that the Pope sent his legates to excommunicate formally the Church of Greece and the Patriarch of Constantinople in his own metropolis, and to deposit the Latin anathema on the altar of Saint Sophia. The failure of the attempt to reunite the two Churches at the Council of Florence (a.d. 1439) has been previously noticed (/). The conquest of Constantinople by the Turks (a.d. 1453) was followed by that long and cruel oppression of the Greek Church, from which she has been, during the last few years, in great measure relieved. The Patriarch of the East has not renewed that claim to the title of Universal Bishop which drew down upon him the just rebuke of the Patriarch of the West. Council, t. viii. pp. 651-674. They are without date, which is fixed by Baronius in 726; by Mur atari {Annal. ce Italia, vi. p. 120) in 720; by P«5-j in 730." (Is,) Vide ante, pp. 334-337. (J,) Vide ante, p. 377. Picldei; i. 390-398, ss. 68-73. Gibbon, c. 46, p. 05, &c. ; c. 47, p. 145. Syropulus, Vera Historia Unionis non vera inter Grcecos et Latinos. Popoff, liist. of Council of Florence, translated by Neale. 506 INTERNATIONAL LAW. CCCCXLIII. The relations of the Church in the King- dom of Greece to the Patriarch and Holy Synod of Con- stantinople form a subject of great interest to the church- man and theologian and are not without interest to the International jurist. Previously (m) to the establishment of Greece as an independent kingdom, the Patriarch and the Holy Synod of Constantinople exercised supreme authority over those coun- tries or states which now compose that kingdom. During the war with Turkey which preceded the establishment of this kingdom, this authority ceased de facto. The Greeks refused to acknowledge even a spiritual power the holder of which resided in the territory of their enemy and oppressor. But in 1828 the Patriarch and the Synod invited Greece to renew her spiritual and ecclesiastical relations with the Patriarchal Throne. Greece, in her reply and in the first article of her declaration of August 4 (July 23), 1833 («), asserted her ecclesiastical independence. This declaration of independence, confirmed by the Greek Constitution of 1843, caused the Greek Church to remain for seventeen years unrecognised by the ancient Church, represented by the Patriarch and Synod of Constantinople. But the people of Greece, whatever certain theologians and statesmen might maintain, were uneasy at and distressed by this condition of isolation, and in 18.50 the Greek Govern- ment opened negotiations with the Patriarch. The result was that the Patriarch, with certain not unimportant reserva- tions, conceded the ecclesiastical independence of the Greek Church. The Concordat or Treaty — if an unilateral act can so be designated — bore the name of to/llos, equivalent to a Bull, and was signed at Constantinople, June 17 (29), 1850 (o). («i) Hecueil de Traites, Samwei; t. ii. p. 421. («) J)e Martens (N.R.) xii. p. 568. (o) Samwer, t. 2, p. 425. Ann. d«s D.M. 1851-52, p. 965. The dociimenta relating to this event were also printed in a modern Cireek journal called the Aiuiv, and are translated in the April number of the Scottish JEvclesiastical Journal for 1851. PATRIAKCH or CONSTANTINOPLE. 507 BytheTreaty(j(?)concludedatLondon, November 20, 1852, betweeu France, England, Russia, Greece, and Bavaria, for the consolidation of the order of succession to the throne of Greece, it was agreed by the first article " that every " successor to the throne of Greece must profess the religion " of the Orthodox Oriental Church." By the decree of the National Assembly of Greece, March 30, 1863, which proclaimed Prince George of Denmark King of the Greeks, it was determined, by the second article, " that the legitimate successors of King George " should profess the dogmas of the Orthodox Oriental " Church" (?). On July 13, 1863, a convention was signed at London by Denmark on the one part, and on the other by France, England, and Russia, relative to the succession of King George I. to the throne of Greece, by the seventh article of which it was set forth " that, in conformity with the " principles of the Hellenic Convention, recognised by the " Treaty signed at London of the 20th of November, 1852, " and proclaimed by the decree of the National Assembly of " Greece, the legitimate successors of King George I. shall " profess the faith of the Orthodox Church of the Greeks " (r). The Christian Powers have intervened to secure the welfare of Christians — Roman Catholic, Catholic, and Protestant — both in the territories of the Sultan generally («) and also in the district of Lebanon (t). (p) iSamwer, t. iv. partie 2, p. 70. {q) Ibid. 76, and Archiv. dipl. 1863, ii. 206. (;■) Samiver, p. 80. (s) 1852, Firman as to the Holy Places ; 1853 (May), Explanatory Fir- man as to reparation of Cupola of Church of the Holy Sepulchre ; 1853 (June), Firman confirmatory of the religious privileges of Protestants ; 1853 (June 6), Firman confirmatory of the religious privileges of the Greek subjects of the Porte ; 1856 (Feb. 18), Firman as to the condition of Christian subjects of the Povte.— Ibid. t. ii. 494, 501, 508. (t) Samwer, t. iv. 101, and Tetot. A.B. 1864 : "Autriche, France, Grande- Bretagne, Prusse, Russie, Turquie. Reglement pour le Liban modicatif de celui de 1861." 508 INTERNATIONAL LAW. CCCCXLITI (a). The increasing intimacy of the rela- tions between the Anglican and Greek Churches may- hereafter render the intervention of England, on behalf of the members of the Greek Church in the Ottoman dominion, as justifiable as the intervention of the Roman Catholic Powers on behalf of the Pope, both in his present exclu- sively spiritual, and in his former mixed spiritual and temporal character (z«). CCCCXLIII (b). (x) Though it may not be easy to define precisely the existing relations of the Patriarch of Constan- tinople to the Kussian Church, it is a mistake, fostered by (m) Intercommunion of Gkeek and Bngmsh Chueches. A.B. 1723. Reply of the Eastern Church to the English Bishops, referred to in the Reply (1871) of the Russian Synod to the United States Episcopate. — Colonial Ch. Chron. for April 1, 1871. 1842 (T'ide ante, p. 482). Foundation of Jerusalem Bishopric — Letter of Archbishop of Canterhiry to the Greek Patriarch. 1868 (July 4) . Report of the Debute on Intercommunion with the Eas- tern Orthodox Churches in the Loioer Souse of Convocalimi in the Frovince of Canterbury. — Eivingtons — and Col. Ch. Chronicle. 1868 (December). Communication in the Greek la^uage of i:h.e Report of the Pan-Anglican Synod to the Patriarch of Constantinople. 1870. Visit of the Archbishop of Syra and Tenos to England. Speech by the Eean of Westminster in the Jerusalem Chamber, Westminster Abbey. Report of the Archbishop of Syra and Tenos of his Journey to England, in Greek and English. London, 1871. Conference between the Archbishop and the Bishop of Ely (Feb. 4, 1870) Col. Ch. Chron. March 1, 1871, pp. 108-15. " Archbishop of Syra and Tenos : ' When I return to Greece I will say that the Church of England is not like other Protestant bodies. I will say that it is a sound Catholic Church, very like our own : and I trust that, by friendly discussion, union between the two Churches may be brought about.' " 1870. Correspondence hetioecn the Patriarch of Jerusalem and the Arch- bishop of Cantei-bury. — Col. Ch. Chron. March 1, 1871, p. 107. Reply of the Russian Synod to the United States Episcopate. — Col, Ch. C;j»-o»i. April 1, 1871. (x) Strahl, Bcytrage znr Russischen Eirchengeschichte (HaUe, 1827). Neale, History of the Holy Eastern Church, vol. i. p. 55. The Times, August 21, 1854, refers to a letter said to be written by the Patriarch Anthimus, during the Crimean AVar, to the Greek Church, iu praise of the defence of Turkey by the European Powers against Russia. PATRIARCH OF CONSTANT . 511 ultramontane writers, to suppose, bee ^ exercises no jurisdiction over that Churcl formal or actual separation between the are not bound together by a common chaii discipline (y). The claim of the Emperor of 1 those subjects of the Porte who are member Church, has been already considered (z). CCCCXLIV. It is remarkable that, not loi ^ the Papal aggression in England, which has been jiiac discussed, _ -Pi7cs /A", made an attack of a similar character upon the Eastern Church. On the 6th of January, 1848, he issued " an Encyclical " Letter of the One Holy Catholic and Apostolic Church " to the Orthodox in aU parts," in modern Greek, " to the Easterns," containing some very unfortunate errors, — among others, a reference to the Council of Carthage, instead of Chalcedon (a) ; but neither this mistake nor the modern Greek appears to have been the cause of the great irritation and offence caused by this memorable epistle — of which it is now not easy to obtaia a copy ; — it was the assumption of authority, the implicit denial of the Greek Episcopate, which roused this long-oppressed Church, and caused it to return, in classical Greek, an answer, which will never be forgotten, " of the Orthodox Eastern Church to the En- " cyclical Epistle of His Holiness the Pope of Rome lately " sent to the Easterns." This answer corrected the his- torical errors of the Pope, and enumerated the offences (?/) Pichler, ii. s. 112, p. 304. (a) Vol. i. pp. 515-530. Intervention on the c/round of Religion. (a) The mistake is singular, for Oreffoiy the Great thus speaks of the compliment paid to Rome by the Council of Chalcedon : " Si enim uni- versalem me Papuin veatra Sanctitas dicit, negat se hoc esse, quod me fatetur universum. Sed ahsit hoc. Kecedant verba quae vanitatem inflant et caritatem vuluerant. Et quidem in Sancta Chalcedonensi Synodo, atque post a subaequentibus Patribus hoc decessoribus meis ob- latum vesti'a Sanctitas novit. Sed tamen nuUus eorum uti hoc imquam vocabulo voluit : ut dum in hoc muudo honorem Sacerdotum diligerent omnium, apud omiiipotentem Deura custodirent suum." — L, viii. ep. xxx. 508 INTERNATIONAL LAW. against the unity and peace of the Church committed by Rome, while it vindicated the faith of the Greek Church in a manner worthy of its best days (b). The more recent attempt of the Pope to induce the Patriarch to acknowledge the cecumenicity of the Vatican Council and the authority of the Pope has been equally unsuccessful (c). (b) Scottish Ecclesiastical Jmirnal, January, 1851. Neale, History of the Holy Eastern Church, vol. ii. pp. 1192-1202. The signatures to the Eastern Encyclic are as follows : — " Anthimus, by the mercy of G-od, Archbishop of Constantinople, New Rome, and CEoumenical Patriarch, in Christ our God a beloved brother and bedesman." " Hierotheus, by the mercy of God, Patriarch of Alexandria and of all Egypt, in Christ," &c. " Methodius, by the mercy of God, Patriarch of the great city of God, Antioch, and of all the East, in Christ," &c. " Cyril, by the mercy of God, Patriarch of Jerusalem and of all Pales- tine, in Christ," &o. THE HOLT STNOD IN CONSIANIINOPLE. Paisius of Csesarea. Theocletus of Berrhaea. Anthimus of Ephesus. Meletius of Pisidia. Dionysius of Heraclea. Athanasius of Smyrna. Joachim of Cyzicus. Dionysius of Meleuicus. Dionj'sius of Nicomedia. Paisius of Sophia. Hierotheus of Chalcedon. Daniel of Lemnos. Neophytvis of Derci. Pantelermon of Dryinopolis. Gerasimus of Hadrianople. Joseph of Ersecuim. Cyril of Neoosesarea. Anthimus of Bodena. THE HOLT STCfOD IN ANTIOCH. Zacharias of Arcadia. Joannicius of Tripolis. Methodius of Emesa. Artemius of Laodicea. THE HOLT SYNOD IN JERTTSALEM. Meletius of Petra. Thaddeus of Sebaste. Dionysius of Bethlehem. Joannicius of Philadelphia. Philemon of Gaza. Plierotheus of Tabor. Samuel of Neapolis. (c) For documents relating to the question of the Encyclics of Pope Pius IX., in 1848 and 1868, to the Greek Church, and the Replies of the Patriarch of Constantinople : — As to the former period, see — rATRIARCII OF CONSTANTINOPLE. 511 On hehalf of Home. 1. Litei'se ad orientales, Jan. 6, 1848. Offizielle Aktcnstuche, u.s.w. p. 127. 2. Confutazione di Antimo Patriarca Sciamatico Costantinopolitano. Eoma : Tipografia della Civilta Cattolica, 1854. 3. La Civilta Cattolica, anno quinto (N° C), seconda serie, vol. sesto. Eoma : Co' tipi della Civilta Cattolica, Via del Quirinale, Num. 36, 20 Maggio, 1854. On behalf of tlie Greek Church. (In the Greek and Italian languages.) 1. Enoiclica dell' una Santa, Cattolica, ed Apostolica Ohiesa agli Orto- dossi di Ogni Regione. Edita a Costantinopoli, nel 1848, dalla na- zionale Tipografia del Patriarcato, e tradotta dal Dr. Giorgio Marcoran. Eistampata a Corfu : 1848. 2. Sopra alcuni Passi dell' Allocuzione di Pio IX nel Oonsistoro Segreto del 19 Dicembre 1853. Osservazioni di Giorgio Marcoran. Corfu : Tipografia Mercurio, A. Tersaclii e T. Eomeo, 1854. 3. Air Articolo del Dr. G. B. Scandella, su 1' Enciclica di Pio IX agli Orientali, inscritto nel portafogli Maltese, del 25 Maggio 1848. Eisposta di Giorgio Marcoran, Corcirese. 2* edizione, con giunte. Corfii : Tipografia Mercurio, A. Tersachi e T. Eomeo, 1853. (In the Italian language only.) 4. Eisposta all' Articolo della Civilta Cattolica (Quaderno C, 20 Maggio 1854) suUa Confutazione di Antimo Patriarca e sopra alcune Osser- vazioni di Giorgio Marcoran. Corfu : Giugno, 1854. (In the Greek language.) 5. ViyKvicKwQ TjjQ ^toQ Ayiag KaSoXiKtjQ Kat A-TroaToXtKijQ EKKKTjffiag ETTttrroX;;, TrpoQ rovQ ATTavraxov OpQoSo^ovg, Ev KwvffrarrivowTroXct, £k rj/g UaTpuipXtKTjQ Tov Vevovg Tviroypad tac. 1848. This has been translated into English and German. See Papers of the Russo-Greek Committee, second series. No. 1. New York t Trovf & Co., 1867. OJkieUe Aldenstuehe, i. 127 : Berlin, 1869. As to the latter period, see — 6. Offizielle Aktensiiicke, p. 129. Eeply of the Greek Patriarch to the invitation to the Vatican Council, October 17, 1868. Dialogue between the Patriarch and the Emissaries of Eome at Constantinople. 7. P. 132. Eeaaons for refusing proposals of Pope by Bishop of Thessa- lonica, 8. AvaroXiKoe Aarrip — E*j;/ifpjc fi' KiovaravTivovTroXa — Ero£ H — 1868 — 12 OKTiolJpwv (tt) 2a|6/3aT((j. (2061) ApiS/J. 612. And see Appendix to this volume. CONTENTS OF APPENDIX. I. Page 73. Page Treaty of London, 1871 515 II. Peefacb. Treaty between Great Britain and the United States of America, 1871 . 520 III. Page 16. Communications with France and Spain relating to the Spanish American Provinces ............ 536 Eeply of Mr. Canning as to the Russian Memoir on the Pacification of Greece ............ 551 Protocol of February 19, 1831 553 IV. Page 46. Breaches of Foreign Municipal Law not cognizable in the Courts of Eng- land or the United States 558 V. Page 89. Interpretation of Treaties 566 VI. Page 127. Eights of Sovereigns. Decisions in the French Courts .... 608 VII. Page 155. Eights of Ambassadors 626 VOL. II. L L 514 CONTENTS OF APPENDIX. VIII. Page 301. Paob Consuls. Decisions in the French Courts ..,.., 648 IX. Page 338. International Eelations of Foreign Spiritual Powers with the State. The Pope . 654 Letter to Guizot from Rossi at.Eome ....... 658 Correspondence respecting the affairs of Eome, 1849 .... 662 Circular of Antonelli .......... 674 Encyclic and Syllabus 675 Circular of Italian Minister for Foreign Affairs ..... 692 Letter of Italian Minister at Brussels ....... 694 Letter of Spanish Minister of State 696 Statute of Guarantees 698 Encyclic on Guarantee Statute 702 New Laws as to the Italian Clergy 708 Debate in the French Assembly 708 X. Page 488: Eegulations of the College of Cardinals 729 Memoir of D'Aguesseau upon the Eoyal Jurisdiction over a Cardinal . 731 XI. Pages 503-10. Eelations between the Greek and Foreign Churches .... 736 APPENDICES. APPENDIX I. Treaty between Her Majesty, the Emperor of Germany, King of Prussia, the Emperor of Austria, the French Republic, the King of Italy, the Emperor of Russia, and the Sultan, for the Revision of certain Stipulations of the Treaty of March 30, 1856. Signed at London, March 13, 1871. [Ratifications exchanged at London, May 15, 1871. j In the Name of Almighty God. " Her Majesty the Queen of the United Kingdom of Great Britain " and Ireland, His Majesty the Emperor of Germany, King of " Prussia, His Majesty the Emperor of Austria, King of Bohemia, " &c., and Apostolic King of Hungary, The Chief of the Executive " Power of the French Eepublic, His Majesty the King of Italy, " His Majesty the Emperor of all the Russias, and His Majesty the " Emperor of the Ottomans, have judged it necessary to assemble " their Representatives in Conference at London, in order to come to " an understanding, in a spirit of concord, with regard to the revision " of the stipulations of the Treaty concluded at Paris on the 30th " March, 1856, relative to the navigation of the Black Sea, as well " as to that of the Danube ; being desirous, at the same time, to " ensure in those regions new facilities for the development of the " commercial activity of all nations, the High Contracting Parties " have resolved to conclude a Treaty, and have for that purpose " named as their Plenipotentiaries, that is to say . . . " Who, after having exchanged their full powers, found in good " and due form, have agreed upon the following Articles : " Art. I.— Articles XI. XIII. and XIV. of the Treaty of Paris " of March 30, 1856, as well as the special Convention concluded " between Russia and the Sublime Porte, and annexed to the said " Article XIV., are abrogated, and replaced by the following " Article : I. l2 516 APPENDIX I. " Art. II. — The principle of the closing of the Straita of the Dar- f danelles and the Bosphorus, such as it has been established by the " separate Convention of March 30, 1856, is maintained, with power " to His Imperial Majesty the Sultan to open the said Straits in time " of peace to the vessels of war of friendly and allied Powers, in " case the Sublime Porte should judge it necessary in order to " secure the execution of the stipulations of the Treaty of Paris of " March 30, 1856. " Art. hi. — The Black Sea remains open, as heretofore, to the " mercantile marine of all nations. " Art. rV. — The Commission established by Article XVI. of the " Treaty of Paris, in which the Powers who joined in signing the " Treaty are each represented by a delegate, and which was charged " with the designation and execution of the works necessary below " Isaktcha, to clear the mouths of the Danube, aa well as the neigh- " bouring parts of the Black Sea, from the sands and other impedi- " ments which obstruct them, in order to put that part of the river "and the said parts of the sea in the best state for navigation, is " maintained in its present composition. The duration of that " Commission is fixed for a further period of twelve years, coimting " from April 24, 1871, that is to say, till April 24, 1883, being the " term of the redemption of the loan contracted by that Commission, " under the guarantee of Great Britain, Germany, Austria-Hungary, " Prance, Italy, and Turkey. " Art. V. — The conditions of the re-assembling of the Riverain " Commission, established by Article XVII. of the Treaty of Paris " of March 30, 1856 shall be fixed by a previous understanding " between the Riverain Powers, without prejudice to the clause " relative to the three Danubian Principalities ; and in so far as any " modification of Article XVH. of the said Treaty may be involved, " this latter shall form the subject of a special Convention between " the co-signatory Powers. " Art. VI. — As the Powers which possess the shores of that part " of the Danube where the Cataracts and the Iron Gates offer impedi- " ments to navigation reserve to themselves to come to an under- " standing with the view of removing those impediments, the high " contracting parties recognize firom the present moment their right " to levy a provisional tax on vessels of commerce of every flag " which may henceforth benefit thereby, until the extinction of the " debt contracted for the execution of the works ; and they declare " Article XV. of the Treaty of Paris of 1856 to be inapplicable " to that part of the river for a space of time necessary for the " repayment of the debt in question. " Art. VII. — All the works and establishments of every kind " created by the European Commission in execution of the Treaty " of Paris of 1856, or of the present Treaty, shall continue to enjoy " the same neutrality which has hitherto protected them, and which APPENDIX I, 517 " shall be equally respected for the future, under all circumstances, " by the High Contracting Parties. The benefits of the immunities " which result therefrom shall extend to the whole administrative ■" and engineering staff of the Commission. It is, however, well " understood that the provisions of this Article shall in no way " affect the right of the Sublime Porte to send, as heretofore, its " vessels of war into the Danube in its character of territorial " Power. " Art. VIII. — The High Contracting Parties renew and confirm " all the stipulations of the Treaty of March 30, 1856, as well as " of its annexes, which are not annulled or modified by the present " Treaty. " Art. IX. — The present Treaty shall be ratified, and the ratifi- " cations shall be exchanged at London in the term of six weeks (a), " or sooner if possible. " In witness whereof the respective Plenipotentiaries have signed " the same, and have affixed thereto the seal of their arms. " Done at London, the thirteenth day of the month of March, in " the year one thousand eight hundred and seventy-one. ■■ (L.S.) GRANVILLE. ' (L.S.) BEENSTORFF, ' (L.S.) APPONYI. ■ (L.S.) BEOGLIE. ' (L.S.) CADOENA. ■ (L.S.) BEUNNOW. ' (L.S.) MUSUEUS." ProcJis- Verbal op Exchange. " The undersigned having met together for the purpose of ex- " changing the ratifications of the Treaty concluded and signed on " the 13th of March, 1871, between Her Majesty the Queen of the " United Kingdom of Great Britain and Ireland, His Majesty the " Emperor of Germany, King of Prussia, His Majesty the Emperor " of Austria, King of Bohemia, &c., and Apostolic King of Hungary, - " the Chief of the Executive Power of the French Eepublic, His " Majesty the King of Italy, His Majesty the Emperor of all the " Eussias, and His Majesty the Emperor of the Ottomans, for the " revision of the stipulations cf the Treaty of the 30th of March, " 1856 relative to the navigation of the Black Sea, as well as to " that of the Danube ; and the respective ratifications having been " carefuUy compared and found in good and due form, the exchange " took place this day in the usual form. " The Plenipotentiaries of Eussia and of the Sublime Porte, at (a) This period was afterwards extended to the 15th of May. 518 APPENDIX I. " the same time, exchanged the ratifications of the Convention " concluded between their respective Courts, on the ] 3th of March, " for abrogating the stipulations of that signed at Paris on the " ^§^th of March, 1856, relative to the number and force of the " vessels of war of the Riverain Powers in the Black Sea ; and " communicated that Convention to the Conference, according to the " terms of the Protocol No. 5, of the 13th March. " In witness whereof the undersigned have signed the present " Proems- Verbal of Exchange, and have affixed thereto the seal " of their arms, " Done at London, the 15th of May, 1871. (Signed) " (L.S.) GRANVILLE. " (L.S.) BERNSTORFF. " (L.S.) A. WOLKENSTEIN. " (L.S.) BROGLIE. " (L.S.) CADORNA. " (L.S.) BRUNNOW. " (L.S.) MUSURUS." Convention between JRussia and Turkey, signed at London, March 13, 1871. (Communicated to the Conference, on the exchange of the Ratifications, May 15, 1871.) In the Name of Almighty God. " His Majesty the Emperor of all the Russias and His Imperial " Majesty the Sultan, being mutually animated with the desire to " consolidate the relations of peace and good understanding happily " existing between their Empires, have resoNed to conclude for " this purpose a Convention, and have named to that effect as their " Plenipotentiaries, that is to say, .... " who, after having exchanged their full powers, found in good " and due form, have agreed upon the following Articles : — " Art. I. — The Special Convention concluded at Paris between " His Majesty the Emperor of all the Russias and His Imperial " Majesty the Sidtan, on the -jfth of March, in the year one " thousand eight hundred and fifty-six, relative to the number and " force of the vessels of war of the two High Contracting Parties in " the Black Sea, is and remains abrogated. " Art. II. — The present Convention shall be ratified, and the " ratifications shall be exchanged at London in the space of six " weeks, or sooner if possible. " In witness whereof the respective Plenipotentiaries have signed " the same, and have afiixed thereto the seal of their arms. APPENDIX I. 519 " Done at London, the 1st (13th) day of the month of March, in the year one thousand eight hundred and seventy-one. " (L.S.) BRUNNOW. " (L.S.) MUSUEUS. " A true copy from the original. (Signed) " The Count de Bkunnow, " London, May 3 (15), 1871." Ambassador of Russia. Convention between Turkey and Bussia, signed at London, March 13, 1871. (Communicated to the Conference, on the exchange of the Ratifications, May 15, 1871.) In the Name of Almighty God. " His Imperial Majesty the Sultan and His Majesty the Emperor " of all the Kussias, being mutually animated with the desire to " consolidate the relations of peace and good understanding happily " existing between their Empires, have resolved to conclude for " this purpose a Convention, and have named to that effect as their " Plenipotentiaries, that is to say, .... " Who, after having exchanged their full powers, found in good " and due form, have agreed upon the following Articles : — " Art. I. — The Special Convention concluded at Paris on the " ^th of March, in the year one thousand eight hundred and " fifty-six, between His Imperial Majesty the Sultan and His " Majesty the Emperor of all the Eussias, relative to the number " and force of the vessels of war of the two High Contracting Par- " ties in the Black Sea, is and remains abrogated. " Art. II. — The present Convention shall be ratified, and the " ratifications shall be exchanged at London in the space of six " weeks, or sooner if possible. " In witness whereof the respective Plenipotentiaries have signed " the same, and have afiUxed thereto the seal of their arms. " Done at London, the 1st (13th) day of the month of March in " the year one thousand eight hundred and seventy-one. " (L.S.) MUSUEUS. " (L.S.) BEUNNOW. " A true copy fi'om the original. (Signed) " Mosueds. " Ambassador of Turkey. " London, May 15, 1871." 520 APPENDIX II. APPENDIX II. Treaty between Her Majesty and the United States of America. (Signed at Washington, May 8, 1871.) " Her Britannic Majesty and the United States of America, being ' desirous to provide for an amicable settlement of all causes of ' difference between the two countries, have for that purpose ' appointed their respective Plenipotentiaries, that is to say : — " Her Britannic Majesty, on her part, has appointed as her High Commissioners and Plenipotentiaries, the Eight Honourable George Frederick Samuel, Earl de Grey and Earl of Ripon, Viscount Goderich, Baron Grantham, a Baronet, a Peer of the United Kingdom, Lord President of Her Majesty's Most Honourable Privy Council, Knight of the Most Noble Order of the Garter, &c. &c. ; the Eight Honourable Sir Stafford Henry Northcote, Baronet, ' one of Her Majesty's Most Honourable Privy Council, a Member ' of Parliament, a Companion of the Most Honourable Order of the ' Bath, &c. &c. ; Sir Edward Thornton, Knight Commander of the ' Most Honourable Order of the Bath, Her Majesty's Envoy Extra- ' ordinary and Minister Plenipotentiary to the United States of ' America ; Sir John Alexander Macdonald, Knight Commander ' of the Most Honourable Order of the Bath, a Member of Her ' Majesty's Privy Council for Canada, and Minister of Justice and ' Attorney-General of Her Majesty's Dominion of Canada ; and ' Montague Bernard, Esq., Chichele Professor of International Law ' in the University of Oxford ; "And the President of the United States has appointed, on the ' part of the United States, as Commissioners in a Joint High Cum- ' mission and Plenipotentiaries, Hamilton Fish, Secretary of State ; ' Eobert Cumming Schenck, Envoy Extraordinary and Minister ' Plenipotentiary to Great Britain ; Samuel Nelson, an Associate ' Justice of the Supreme Court of the United States; Ebenezer ' Eockwood Hoar, of Massachusetts ; and George Henry Williams, ' of Oregon ; " And the said Plenipotentiaries, after having exchanged their full ' powers, which were found to be in due and proper form, have ' agreed to and concluded the following Articles : — " Art. I. — Whereas differences have arisen between the Govern- ' ment of the United States and the Government of Her Britannic ' Majesty, and still exist, growing out of the acts committed by the several vessels which have given rise to the claims generically known as the ' Alabama ' claims : " And whereas Her Britannic Majesty has authorized her High Commissioners and Plenipotentiaries to express, in a friendly APPENDIX II. 521 " spirit, the regret felt by Her Majesty's Government for the escape, " under whatever circumstances, of the 'Alabama' and other vessels " from British ports, and for the depredations committed by those " vessels : " Now, in order to remove and adjust all complaints and claims " on the part of the United States, and to provide for the speedy " settlement of such claims, which are not admitted by Her Britannic " Majesty's Government, the High Contracting Parties agree that " all the said claims, growing out of acts committed by the aforesaid " vessels, and generically known as the ' Alabama ' claims, shall be " referred to a Tribunal of Arbitration, to be composed of five " Arbitrators, to be appointed in the following manner, that is to " say : one shall be named by Her Britannic Majesty ; one shall be " named by the President of the United States ; His Majesty the " King of Italy shall be requested to name one ; the President of " the Swiss Confederation shall be requested to name one ; and His " Majesty the Emperor of Brazil shall be requested to name one. " In case of the death, absence, or incapacity to serve of any or " either of the said Arbitrators, or in the event of either of the said " Arbitrators omitting or declining or ceasing to act as such, Her " Britannic Majesty, or the President of the United States, or His " Majesty the King of Italy, or the President of the Swiss Con- " federation, or His Majesty the Emperor of Brazil, as the case may " be, may forthwith name another person to act as Arbitrator in the " place and stead of the Arbitrator originally named by such head " of a State. " And in the event of the refusal or omission for two months " after receipt of the request from either of the High Contracting " Parties of His Majesty the King of Italy, or the President of the " Swiss Confederation, or His Majesty the Emperor of Brazil, to " name an Arbitrator either to fill the original appointment or in " the place of one who may have died, be absent, or incapacitated, " or who may omit, decline, or from any cause cease to act as such " Arbitrator, His Majesty the King of Sweden and Norway shall be " requested to name one or more persons, as the case may be, to act " as such Arbitrator or Arbitrators. " Art. II. — The Arbitrators shall meet at Geneva, in Switzer- " land, at the earliest convenient day after they shall have been " named, and shall proceed impartially and carefully to examine " and decide all questions that shall be laid before them on the part " of the Governments of Her Britannic Majesty and the United " States respectively. All questions considered by the Tribunal, " including the final award, shall be decided by a majority of all " the Arbitrators. " Each of the High Contracting Parties shall also name one " person to attend the tribunal as its agent to represent it generally " in aU matters connected with the arbitration. 522 APPENDIX II. " Art. III. The written or printed case of each of the two Parties, " accompanied by the documents, the official correspondence, and " other evidence on which each relies, shall be delivered in duplicate " to each of the Arbitrators and to the agent of the other Party as " soon as may be after the organization of the tribunal, but within " a period not exceeding six months from the date of the exchange " of the ratifications of this Treaty. " Art. rV. — Within four months after the delivery on both sides " of the written or printed case, either party may, in like manner, " deliver in duplicate to each of the said Arbitrators, and to the " Agent of the other Party, a counter case and additional documents, " correspondence, and evidence, in reply to the case, documents, " correspondence, and evidence so presented by the other Party. " The Arbitrators may, however, extend the time for delivering " such counter case, documents, correspondence, and evidence, when, " in their judgment, it becomes necessary, in consequence of the " distance of the place from which the evidence to be presented is " to be procured. " If in the case submitted to the Arbitrators either Party shall " have specified or alluded to any report or document in its own " exclusive possession without annexing a copy, such Party shall be " bound, if ihe other Party thinks proper to apply for it, to fiirnish that " Party with a copy thereof ; and either Party may call upon the " other, through the Arbitrators, to produce the originals or certified " copies of any papers adduced as evidence, giving in each instance " such reasonable notice as the Arbitrators may require. " Art. V. — It shall be the duty of the Agent of each Party, " within two months after the expiration of the time limited for the " delivery of the counter case on both sides, to deliver in duplicate " to each of the said Arbitrators and to the Agent of the other " Party a written or printed argument showing the points and re- " ferring to the evidence upon which his Government relies ; and " the Arbitrators may, if they desire ftirther elucidation with regard " to any point, require a written or printed statement or argument " or oral argument by counsel upon it ; but in such case the other " Party shall be entitled to reply either orally or in writing, as the " case may be. " Art. VI. — In deciding the matters submitted to the Arbitrators " they shall be governed by the following three rules, which are " agreed upon by the High Contracting Parties as rules to be taken " as applicable to the case, and by such principles of international " law not inconsistent therewith as the Arbitrators shall determine " to have been applicable to the case : — " A neutral Government is boimd — " First. To use due diligence to prevent the fitting out, arming, " or equipping, within its jiu'isdiction, of any vessel which it has APPENDIX II. 523 " reasonable ground to believe is intended to cruise or to carry on " war against a Power with which it is at peace ; and also to use " like diligence to prevent the departure from its jurisdiction of any " vessel intended to cruise or carry on war as above, such vessel " having been specially adapted, in whole or in part, within such " jurisdiction, to warlike use. " Secondly. Not to permit or suffer either belligerent to make " use of its ports or waters as the base of naval operations against " the other, or for the purpose of the renewal or augmentation of " military supplies or arms, or the recruitment of men. " Thirdly. To exercise due diligence in its own ports and " waters, and, as to all persons within its jurisdiction, to prevent any " violation of the foregoing obligations and duties. " Her Britannic Majesty has commanded her High Commissioners " and Plenipotentiaries to declare that Her Majesty's Government " cannot assent to the foregoing rules as a statement of principles of " international law which were in force at the time when the claims " mentioned in Article I. arose, but that Her Majesty's Government, " in order to evince its desire of strengthening the friendly relations " between the two countries and of making satisfactory provision " for the future, agrees that, in deciding the questions between the " two countries arising out of those claims, the Arbitrators should " assume that Her Majesty's Government had undertaken to act " upon the principles set forth in these rules. " And the High Contracting Parties agree to observe these rules " as between themselves in future, and to bring them to the know- " ledge of other maritime Powers and to invite them to accede to " them. " Art. Vn. — The decision of the Tribunal shall, if possible, be " made within three months from the close of the argument on both " sides. " It shall be made in writing and dated, and shall be signed by " the Arbitrators who may assent to it. " The said Tribunal shall first determine as to each vessel sepa- " rately whether Great Britain has, by any act or omission, failed " to fulfil any of the duties set forth in the foregoing three rules, or " recognised by the principles of international law not inconsistent " with such rules, and shall certify such fact as to each of the said " vessels. In case the Tribunal find that Great Britain has failed " to fulfil any duty or duties as aforesaid, it may, if it think " proper, proceed to award a sum in gross to be paid by Great " Britain to the United States for aU the claims referred to it ; and " in such case the gross sum so awarded shall be paid in coin by " the Government of Great Britain to the Government of the " United States at Washington within twelve months after the date " of the award. " The award shall be in duplicate, one copy whereof shall be de- " livered to the Agent of Great Britain for his Government, and the 524 APPENDIX II. " Other copy shall be delivered to the Agent of the United States " for his Government. " Art. VIII. — Each Government shall pay its own Agent and " provide for the proper remuneration of the Counsel employed by " it, and of the Arbitrator appointed by it, and for the expense of " preparing and submitting its case to the Tribunal. All other ex- " penses connected with the arbitration shall be defrayed by the two " Governments in equal moieties. " Art. IX. — The Arbitrators shall keep an accurate record of " their proceedings, and may appoint and employ the necessary " officers to assist them. " Art. X. — In case the Tribunal finds that Great Britain has " failed to fulfil any duty or duties as aforesaid, and does not award " a sum in gross, the High Contracting Parties agree that a Board " of Assessors shall be appointed to ascertain and determine what " claims are valid, and what amount or amounts shall be paid by " Great Britain to the United States on account of the liability " arising irom such failure as to each vessel, according to the extent " of such liability as decided by the Arbitrators. " The Board of Assessors shall be constituted as follows : One " member thereof shall be named by Her Britannic Majesty, one " member thereof shall be named by the President of the United " States, and one member thereof shall be named by the Eepresenta- " tive at Washington of His Majesty the King of Italy ; and in case " of a vacancy happening . from any cause, it shall be filled in the " same manner in which the oiiginal appointment was made. " As soon as possible afler such nominations the Board of Asses- " Bors shall be organized in "Washington with power to hold their " sittings there, or in New York, or in Boston. The members " thereof shall severally subscribe a solemn declaration that they " will impartially and carefully examine and decide, to the best of " their judgment and according to justice and equity, all matters " submitted to them, and shall forthwith proceed, under such rules " and regulations as they may prescribe, to the investigation of the " claims which shall be presented to them by the Government of " the United States, and shall examine and decide upon them in such " order and manner as they may think proper, but upon such evi- " dence or information only as shall be furnished by or on behalf of " the Governments of Great Britain and of the United States re- " spectively. They shall be bound to hear on each separate claim, " if required, one person on behalf of each Government as Counsel " or Agent. A majority of the Assessors in each case shall be suffi- " cient for a decision. " The decision of the Assessors shall be given upon each claim in " writing, and shall be signed by them respectively, and dated. " Every claim shall be presented to the Assessors within six " months from the day of their first meeting ; but they may, for APPENDIX II, 525 " good cause shown, extend the time for the presentation of any " claim to a further period not exceeding three months. " The Assessors shall report to each Government, at or before the expiration of one year from the date of their first meeting, the amount of claims decided by them up to the date of such report ; if further claims then remain undecided, they shall make a further report at or before the expiration of two years from the date of such first meeting; and in case any claims remain undetermined at that time, they shall make a final report within a further period of six months. " The report or reports shall be made in duplicate, and one copy thereof shall be delivered to the Representative of Her Britannic Majesty at Washington, and one copy thereof to the Secretary of State of the United States. " All sums of money which may be awarded under this Article shall be payable at Washington, in coin, within twelve months after the delivery of each report. " The Board of Assessors may employ such clerks as they shall think necessary. " The expenses of the Board of Assessors shall be borne equally by the two Governments, and paid from time to time, as may be" found expedient, on the production of accounts certified by the Board. The remuneration of the Assessors shall also be paid by the two Governments in equal moieties in a similar manner. " Art. XL — The High Contracting Parties engage to consider the result of the proceedings of the Tribunal of Arbitration aiid of the Board of Assessors, should such Board be appointed, as a full, perfect, and final settlement of all the claims hereinbefore referred to ; and further engage that every such claim, whether the same may or may not have been presented to the notice of, made, pre- ferred, or laid before the Tribunal or Board, shall, from and after the conclusion of the proceedings of the Tribunal or Board, be considered and treated as finally settled, barred, and thenceforth inadmissible. " Art. XII. — The High Contracting Parties agree that all claims on the part of Corporations, Companies, or private individuals, citizens of the United States, upon the Government of Her Britannic Majesty, arising out of acts committed against the persons or property of citizens of the United States during the period between the 13th of April, 1861, and the 9th of April, 1865, inclusive, not being claims growing out of the acts of the vessels referred to in Article I. of this Treaty ; and all claims, with the like excep- tion, on the part of Corporations, Companies, or private indivi- duals, subjects of Her Britannic Majesty, upon the Government of the United States, arising out of acta committed against the persons or property of subjects of Her Britannic Majesty during the same period, which may have been presented to either 526 APPENDIX ir. " Government for its interposition with the other, and which yet " remain unsettled, as well as any other such claims which may be " presented within the time specified in Article XIV. of this Treaty, " shall be referred to three Commissioners, to be appointed in the " following manner, that is to say : — One Commissioner shall be " named by Her Britannic Majesty, one by the President of the " United States, and a third by Her Britannic Majesty and the " President of the United States conjointly ; and in case the third " Commissioner shall not have been so named within a period of " three months from the date of the exchange of the ratifications of " this Treaty, then the third Commissioner shall be named by the " Representative at Washington of His Majesty the King of Spain. " In case of the death, absence, or incapacity of any Commissioner, " or in the event of any Commissioner omitting or ceasing to act, " the vacancy shall be filled in the manner hereinbefore provided " for making the original appointment, the period of three months " in case of such substitution being calculated from the date of the ■ " happening of the vacancy. " The Commissioners so named shall meet at Washington at the " earliest convenient period after they have been respectively named ; " and shall, before proceeding to any business, make and subscribe " a solemn declaration that they will impartially and carefully " examine and decide, to the best of their judgment, and according " to justice and equity, all such claims as shall be laid before them " on the part of the Governments of Her Britannic Majesty and of " the United States respectively ; and such declaration shall be " entered on the record of their proceedings. " Art. XIII. — -The Commissioners shall then forthwith proceed to " the investigation of the claims which shall be presented to them. " They shall investigate and decide such claims in such order and " such manner as they may think proper, but upon such evidence " or information only as shall be furnished by or on behalf of their " respective Governments. They shall be bound to receive and " consider all written documents or statements which may be pre- " sented to them by or on behalf of their respective Governments in " support of, or in answer to, any claim ; and to hear, if required, " one person on each side, on behalf of each Government, as Coun- " sel or Agent for such Government, on each and every separate " claim. A majority of the Commissioners shall be sufficient for an " award in each case. The award shall be given upon each claim " in writing, and shall be signed by the Commissioners assenting " to it. It shall be competent for each Government to name one " person to attend the Commissioners as its Agent to present and " support claims on its behalf, and to answer claims made upon it, " and to represent it generally in all matters connected with the " investigation and decision thereof. " The High Contracting Parties hereby engage to consider the APPENDIX II. 527 " decision of the Commissioners as absolutely final and conclusive " upon each claim decided upon by them, and to give full effect to " such decisions without any objection, evasion, or delay whatso- " ever. " Art. XrV. — Every claim shall be presented to the Commis- " sioners within six months from the day of their first meeting, " unless in any case where reasons for delay shall be established to " the satisfection of the Commissioners ; and then, and in any such " case, the period for presenting the claim may be extended by " them to any time not exceeding three months longer. " The Commissioners shaU be bound to examine and decide upon " every claim within two years from the day of their first meeting. " It shall be competent for the Commissioners to decide in each " case whether any claim has or has not been duly made, preferred, " and laid before them, either wholly or to any and what extent, " according to the true intent and meaning of this Treaty. " Aet. XV. — AU sums of money which may be awarded by the " Commissioners on account of any claim shall be paid by the one " Government to the other, as the case may be, within twelve " months after the date of the final award, without interest, and " without any deduction, save as specified in Article XVI. of this " Treaty. " Art. XVI. — The Commissioners shall keep an accurate record, " and correct minutes or notes of all their proceedings, with the " dates thereof, and may appoint and employ a Secretary, and any " other necessary officer or officers, to assist them in the transaction " of the business which may come before them. " Each Government shall pay its own Commissioner and Agent " or Counsel. All other expenses shall be defirayed by the two " Governments in equal moieties. " The whole expenses of the Commission, including contingent " expenses, shall be defrayed by a rateable deduction on the amount " of the sums awarded by the Commissioners ; provided always that " such deduction shall not exceed the rate of 5 per cent, on the " sums so awarded. " Art. XVn. — The High Contracting Parties engage to consider " the result of the proceedings of this Commission as a full, perfect, " and final settlement of all such claims as are mentioned in Article " XII. of this Treaty upon either Government ; and further engage " that every such claim, whether or not the same may have been " presented to the notice of, made, preferred, or laid before the said " Commission, shall, from and after the conclusion of the proceedings " of the said Commission, be considered and treated as finally settled, " barred, and thenceforth inadmissible. " Art. XVIII. — It is agreed by the High Contracting Parties " that, in addition to the liberty secured to the United States' " fishermen by the Convention between Great Britain and the 528 APPENDIX II. " United States, signed at London on the 20th day of October, 1818, " of taking, curing, and drying fish on certain coasts of the British " North American Colonies therein defined, the inhabitants of the " United States shall have, in common with the subjects of Her " Britannic Majesty, the liberty, for the term of years mentioned in " Article XXXIII. of this Treaty, to take fish of every kind, except " shell-fish, on the sea-coasts and shores, and in the bays, harbours, " and creeks, of the Provinces of Quebec, Nova Scotia, and New " Brunswick, and the Colony of Prince Edward's Island, and of the " several islands thereunto adjacent, without being restricted to any " distance from the shore, with permission to land upon the said " coasts and shores and islands, and also upon the Magdalen Islands, " for the purpose of drying their nets and curing their fish; provided " that, in so doing, they do not interfere with the rights of private " property, or with British fishermen, in the peaceable use of any " part of the said coasts in their occupancy for the same purpose. " It is understood that the above-mentioned liberty applies solely " to the sea fishery, and that the salmon and shad fisheries, and all "-other fisheries in rivers and the mouths of rivers, are hereby " reserved exclusively for British fishermen. " Art. XIX. — It is agreed by the High Contracting Parties that " British subjects shall have, in common with the citizens of the " United States, the liberty, for the term of years mentioned in " Article XXXIII. of this Treaty, to take fish of every kind, except " shell-fish, on the eastern sea-coasts and shores of the United States " north of the thirty-ninth parallel of north latitude, and on the " shores of the several islands thereunto adjacent, and in the bays, " harbours, and creeks of the said sea-coasts and shores of the " United States and of the said islands, without being restricted to " any distance from the shore, with permission to land upon the said " coasts of the United States and of the islands aforesaid, for the " purpose of drying their nets and curing their fish ; provided that, " in so doing, they do not interfere -with the rights of private pro- " perty, or with the fishermen of the United States, in the peaceable " use of any part of the said coasts in their occupancy for the same " purpose. " It is understood that the above-mentioned liberty applies solely " to the sea fishery, and that salmon and shad fisheries, and all other " fisheries in rivers and mouths of rivers are hereby reserved exclu- " sively for fishermen of the United States. " Art. XX. — It is agreed that the places designated by the Com- " missioners appointed under the first Article of the Treaty between " Great Britain and the United States, concluded at Washington on " the 5th of June, 1854, upon the coasts of the United States and " Her Britannic Majesty's dominions, as places reserved from the " common right of fishing under that Treaty, shall be regarded as in " like manner reserved from the common right of fishing imder the APPENDIX II. 529 " preceding Articles. In case any question should arise between the " Governments of Her Britannic Majesty and of the "United States as " to the common right of fishing in places not thus designated as " reserved, it is agreed that a Commission shall be appointed to " designate such places, and shall be constituted in the same manner, " and have the same powers, duties, and authority as the Commission " appointed under the said fir.st Article of the Treaty of the 5th of " June, 1854. " Art, XXI. — It is agreed that, for the term of years mentioned " in Article XXXIII. of this Treaty, fish oil and fish of all kinds " (except fish of the inland lakes, and of the rivers falling into them, " and except fish preserved in oU) being the produce of the fisheries " of the United States, or of the Dominion of Canada, or of Prince " Edward's Island, shall be admitted into each country, respectively, " free of duty. " Art. XXII. — Inasmuch as it is asserted by the Government of " Her Britannic Majesty that the privileges accorded to the citizens " of the United States under Article XVIII. of this Treaty are of " greater value than those accorded by Articles XIX. and XXI. of " this Treaty to the subjects of Her Britannic Majesty, and this " assertion is not admitted by the Government of the United States ; " it is further agreed that Commissioners shall be appointed to deter- " mine, having regard to the privileges accorded by the United " States to the subjects of Her Britannic Majesty, as stated in " Articles XIX. and XXI. of this Treaty, the amount of any compen- " sation which, in their opinion, ought to be paid by the Government " of the United States to the Government of Her Britannic Majesty " in return for the privileges accorded to the citizens of the United " States tmder Article XVIII. of this Treaty ; and that any stun of " money which the said Coramissionera may so award shall be paid " by the United States Government, in a gross sum, within twelve " months afl;er such award shall have been given. " Art. XXIH. — The Commissioners referred to in the preceding " Article shall be appointed in the following manner, that is to say : " One Commissioner shall be named by Her Britannic Majesty, one " by the President of the United States, and a third by Her Britannic " Majesty and the President of the United States conjointly ; and in " case the third Commissioner shall not have been so named within " a period of three months from the date when this Article shall take " effect, then the third Commissioner shall be named by the Eepre- " sentative at London of His Majesty the Emperor of Austria and " King of Hungary. In case of the death, absence, or incapacity of " any Commissioner, or in the event of any Commissioner omitting " or ceasing to act, the vacancy shall be filled in the manner herein- " before provided for making the original appcdntment, the period of " three months in case of such substitution being calculated from the " date of th^ happening of the vacancy. VOL. II. M M 530 APPENDIX II, " The Commissioners so named shall meet in the city of Halifax, " in the province of Nova Scotia, at the earliest convenient period " after they have been respectively named, and shall, before pro- " ceeding to any business, make and subscribe a solemn declaration " that they will impartially and carefully examine and decide the " matters referred to them to the best of their judgment, and " according to justice and equity ; and such declaration shall be " entered on the record of their proceedings. " Each of the High Contracting Parties shall also name one " person to attend the Commission as its agent, to represent it gene- " rally in all matters connected with the Commission. " Art. XXIV. — The proceedings shall be conducted in such " order as the Commissioners appointed under Articles XXII. and " XXIII. of this Treaty shall determine. They shaU be bound to " receive such oral or vsritten testimony as either Government may " present. If either Party shall offer oral testimony, the other " Party shall have the right of cross-examination, imder such rules " as the Commissioners shall prescribe. "If in the case submitted to the Commissioners either Party " shall have specified or alluded to any report or document in its " own exclusive possession, without annexing a copy, such Party " shall be bound, if the other Party thinks proper to apply for it, " to furnish that Party with a copy thereof; and either Party may " call upon the other, through the Commissioners, to produce the " originals or certified copies of any papers adduced as evidence, " giving in each instance such reasonable notice as the Commis- " sioners may require. " The case on either side shall be closed within a period of six " months from the date of the organization of the Commission, and " the Commissioners shall be requested to give their award as soon " as possible thereafter. The aforesaid period of six months may " be extended for three months in . case of a vacancy occurring " among the Commissioners under the circumstances contemplated " in Article XXIII. of this Treaty. " Art. XXV. — The Commissioners shall keep an accurate record " and correct minutes or notes of all their proceedings, ^vith the " dates thereof, and may appoint and employ a Secretary and any " other necessary officer or officers to assist them in the transaction " of the business which may come before them. " Each of the High Contracting Parties shall pay its own Com- " missioner and Agent or Counsel ; all other expenses shall be " defrayed by the two Governments in equal moieties. " Art. XXVI. — The navigation of the Eiver St. Lawrence, " ascending and descending, from the forty-fifth parallel of north " latitude, where it ceases to form the boundary between the two " cotmtries, from, to, and into the sea, shall for ever remain free and " open for the purposes of commerce to the citizens of the United APPENDIX II. 531 " States, subject to any laws and regulations of Great Britain, or of " the Dominion of Canada, not inconsistent with such privilege of " free navigation. " The navigation of the Elvers Yukon, Porcupine, and Stikine, " ascending and descending from, to, and into the sea, shall for ever " remain free and open for the purposes of commerce to the subjects " of Her Britannic Majesty and to the citizens of the United " States, subject to any laws and regulations of either country within " its own territory, not inconsistent with such privilege of free " navigation. " Art. XXVn. — The Government of Her Britannic Majesty " engages to urge upon the Government of the Dominion of Canada " to secure to the citizens of the United States the use of the " Welland, St. Lawrence, and other canals in the Dominion on " terms of equality with the inhabitants of the Dominion ; and the " Government of the United States engages that the subjects of Her " Britannic Majesty shall enjoy the use of the St. Clair Flats Canal " on terms of equality with the inhabitants of the United States, " and further engages to urge upon the State Governments to secure " to the subjects of Her Britannic Majesty the use of the several " State canals connected with the navigation of the lakes or rivers " traversed by or contiguous to the boundary line between the " possessions of the High Contracting Parties, on terms of equality " with the inhabitants of the United States. " Aet. XXVIII. — The navigation of Lake Michigan shall also, " for the term of years mentioned in Article XXXHI. of this Treaty, " be free and open for the purposes of commerce to the subjects of " Her Britannic Majesty, subject to any laws and regulations of " the United States or of the States bordering thereon not incon- " sistent with such privilege of free navigation. " Art. XXIX. — It is agreed that, for the term of years mentioned " in Article XXXIH. of this Treaty, goods, wares, or merchandize " arriving at the ports of New York, Boston, and Portland, and any " other ports in the United States which have been or may from " time to time be specially designated by the President of the " United States, and destined for Her Britannic Majesty's Posses- " sions in North America, may be entered at the proper Custom-house " and conveyed in transit, without the payment of duties, through " the territory of the United States, under such rules, regulations, " and conditions for the protection of the revenue as the Government " of the United States may from time to time prescribe ; and, under " like rules, regulations, and conditions, goods, wares, or merchan- " dize may be conveyed in transit, without the payment of duties, " from such possessions through the territory of the United States " for export from the said ports of the United States. " It is further agreed that for the like period goods, wares, or " merchandize arriving at any of the ports of Her Britannic 31 M 2 532 APPENDIX II. " Majesty's Possessions in North America and destined for the " United States may be entered at the proper Custom-house and " conveyed in transit without the payment of duties, through the " said Possessions, under such rules and regulations, and conditions " for tlie protection of the revenue, as the Governments of the said " Possessions may from time to time prescribe ; and under like " rules, regulations, and conditions, goods, wares, or merchandize " may be conveyed in transit, without payment or duties, from " the United States through the said Possessions to other places " in the United States, or for export from ports in the said " Possessions. " Art. XXX. — It is agreed that, for the term of years mentioned " in Article XXXIII. of this Treaty, subjects of Her Britannic " Majesty may carry in British vessels, without payment of duty, " goods, wares, or merchandize from one port or place within the " territory of the United States upon the St. Lawrence, the Great " Lakes, and the rivers connecting the same, to another port or " place within the territory of the United States as aforesaid : " Provided, That a portion of such transportation is made through " the Dominion of Canada by land carriage and in bond, under " such rules and regulations as may be agreed upon between the " Government of Her Britannic Majesty and the Government of the « United States. " Citizens of the United States may for the like period carry in " United States' vessels, without payment of duty, goods, wares, or " merchandize from one port or place within the Possessions of Her " Britannic Majesty in North America, to another port or place " within the said Possessions : Provided, That a portion of such " transportation is made through the territory of the United States " by land carriage and in bond, under such rules and regulations as " may be agreed upon between the Government of the United " States and the Government of Her Britannic Majesty. " The Government of the United States further engages not to " impose any export duties on goods, wares, or merchandize carried " under this Article through the territory of the United States ; and " Her Majesty's Government engages to urge the Parliament of the " Dominion of Canada and the Legislatures of the other Colonies " not to impose any export duties on goods, wares, or merchandize " carried under this Article ; and the Government of the United " States may, in case such export duties are imposed by the " Dominion of Canada, suspend, during the period that such duties " are imposed, the right of carrying granted under this Article in " favour of the subjects of Her Britannic Majesty. " The Government of the United States may suspend the right " of carrying granted in favour of the subjects of Her Britannic " Majesty under this Article in case the Dominion of Canada should " at any time deprive the citizens of the United States of the iise of APPENDIX ir. 533 " the canals in tBe said Dominion on terms of equality with the " inhabitants of the Dominion, as provided in Article XXVII. " Art. XXXI. — The Government of Her Britannic Majesty " further engages to urge upon the Parliament of the Dominion of " Canada and the Legislature of New Brunswick, that no export " duty, or other duty, shall be levied on lumber or timber of any " kind cut on that portion of the American territory in the State of " Maine watered by the Eiver St. John and its tributaries, and " floated down that river to the sea, when the same is shipped to the " United States from the province of New Brunswick. And, in " case any such export or other duty continues to be levied after " the expiration of one year from the date of the exchange of the " ratifications of this Treaty, it is agreed that the Government of " the United States may suspend the right of carrying hereinbefore " granted imder^ Article XXX. of this Treaty for such period as " such export or other duty may be levied. " Art. XXXII. — It is further agreed that the provisions and " stipulations of Articles XVIII. to XXV. of this Treaty, inclusive, " shall extend to the Colony of Newfoundland, so far as they are " applicable. But if the Imperial Parliament, the Legislature of " Newfoundland, or the Congress of the United States, shall not " embrace the Colony of Newfoundland in their laws enacted for " carrying the foregoing Articles into effect, then this Article shall " be of no effect ; but the omission to make provision by law to " give it effect, by either of the Legislative Bodies aforesaid, shall " not in any way impair any other Articles of this Treaty. " Art. XXXIII.— The foregoing Articles XVIII. to XXV. in- " elusive, and Article XXX. of this Treaty, shall take effect as soon " as the laws required to carry them into operation- shall have been " passed by the Imperial Parliament of Great Britain, by the Par- " liament of Canada, and by the Legislature of Prince Edward's " Island on the one hand, and by the Congress of the United " States on the other. Such assent having been given, the said " Articles shall remain in force for the period of ten years from the " date at which they may come into operation, and further, until " the expiration of two years after either of the High Contracting " Parties shall have given notice to the other of its wish to termi- " nate the same ; each of the High Contracting Parties being at " liberty to give such notice to the other at the end of the said " period of ten years or at any time afterward. " Aet. XXXIV. — Whereas it was stipulated by Article I. of the " Treaty concluded at Washington on the 15th of June, 1846, " between Her Britannic Majesty and the United States, that the " line of boundary between the territories of the United States and " those of Her Britannic Majesty, from the point on the forty-ninth " parallel of north latitude up to which it had already been ascer- " tained, should be continued westward along the said parallel of 534 ArrENDix ii. " north latitude ' to the middle of the channel which separates the " ' continent from Vancouver's Island, and thence southerly, " ' through the middle of the said channel and of Fuca Straits, to " ' the Pacific Ocean ; ' and whereas the Commissioners appointed " by the two High Contracting Parties to determine that portion of " the boundary which runs southerly through the middle of the " channel aforesaid were unable to agree upon the same ; and " whereas the Government of Her Britannic Majesty claims that " such boundary hne should, under the terms of the Treaty above " recited, be run through the Eosario Straits, and the Government " of the United States claims that it should be run through the " Canal de Haro, it is agreed that the respective claims of the " Government of Her Britannic Majesty and of the Government of " the United States shall be submitted to the arbitration and award " of His Majesty the Emperor of Germany, who, having regard to " the above-mentioned Article of the said Treaty, shall decide " thereupon, finally and without appeal, which of those claims is " most in accordance with the true interpretation of the Treaty of " June 15, 1846. " Art. XXXV. — The award of His Majesty the Emperor of " Germany shall be considered as absolutely final and conclusive; " and full effect shall be given to such award without any objection, " evasion, or delay whatsoever. Such decision shall be given in " writing and dated ; it shall be in whatsoever form His Majesty may " choose to adopt ; it shall be delivered to the Eepresentatives or " other public Agents of Great Britain and of the United States " respectively who may be actually in Berlin, and shall be considered " as operative from the day of the date of the delivery thereof. " Art. XXXVI. — The written or printed case of each of the two " Parties, accompanied by the evidence offered in support of the " same, shall be laid before his Majesty the Emperor of Germany, " within six months from the date of the exchange of the ratifications " of this Treaty, and a copy of such case and evidence shall be com- " municated by each Party to the other, through their respective " Representatives at Berlin. " The High Contracting Parties may include in the evidence to " be considered by the Arbitrator, such documents, official cor- " respondence, and other official or piiblic statements bearing on the " subject of the reference as they may consider necessary to the " support of their respective cases. " After the written or printed case shall have been communicated " by each Party to the other, each Party shall have the power of " drawing up and laying before the Arbitrator a second and defini- " tive statement, if it think fit to do so, in reply to the case of the " other Party so commimicated, which definiti^'e statement shall be " so laid before the Arbitrator, and also be mutually communicated " in the same manner as albresaid, by each party to the other, within APPENDIX II. 536 " six months from the date of laying the first statement of the case " before the Arbitrator. " Art. XXXVII. — If, in the case submitted to the Arbitrator, " either Party shall specify or allude to any report or document in " its own exclusive possessions without annexing a copy, such Party " shall be bound, if the other Party thinks proper to apply for it, " to furnish that Party with a copy thereof, and either Party may " call upon the other, through the Arbitrator, to produce the ori- " ginals or certified copies of any papers adduced as evidence, giving " in each instance such reasonable notice as the Arbitrator may " require. And if the Arbitrator should desire further elucidation " or evidence with regard to any point contained in the statements " laid before him, he shall be at liberty to require it from either " Party, and he shall be at liberty to hear one counsel or agent for " each Party, in relation to any matter, and at such time, and in " such manner, as he may think fit. " Art. XXXVIII. — The Eepresentatives or other pubhc Agents " of Great Britain and of the United States at Berlin respectively, " shall be considered as the Agents of their respective Governments " to conduct their cases before the Arbitrator, who shall be requested " to address all his communications, and give all his notices, to such " Eepresentatives or other public Agents, who shall represent their " respective Governments generally in all matters connected with " the arbitration. " Art. XXXIX. — It shall be competent to the Arbitrator to pro- " ceed in the said arbitration, and all matters relating thereto, as " and when he shall see fit, either in person, or by a person or " persons named by him for that purpose, either in the presence or " absence of either or both Agents, and either orally or by written " discussion, or otherwise. " Art. XXi. — The Arbitrator may, if he think fit, appoint a " Secretary or Clerk, for the purposes of the proposed arbitration, " at such rate of remuneration as he shall think proper. This, and " all other expenses of and connected with the said arbitration, shall " be provided for as hereinafter stipulated. " Art. XLI. — The Arbitrator shall be requested to deliver, to- " gether with his award, an account of all the costs and expenses " which he may have been put to, in relation to this matter, which " shall forthwith be repaid by the two Governments in equal " moieties. " Art. XLII. — The Arbitrator shall be requested to give his " award in writing as early as convenient after the whole case on " each side shall have been laid before him, and to deliver one copy " thereof to each of the said Agents. " Art. XLIII. — The present Treaty shall be duly ratified by Pier '" Britannic Majesty, and by the President of the United States of " America, by and with the advice and consent of the Senate 536 APPENDIX ir. thereof, and tlie ratifications shall be exchanged either at London ' or at Washington within six months from the date hereof, or earlier if possible. " In faith -whereof, we, the respective Plenipotentiaries, have ■ signed this Treaty, and have hereunto affixed our seals. " Done in duplicate at Washington, the eighth day of May, in the • year of Our Lord one thousand eight hundred and seventy-one. (L.S.) DE GREY AND EIPON. (L.S.) STAFPOED H. NOETHCOTB. (L.S.) EDWD. THOENTON. (L.S.) JOHN A. MACDONALD. (L.S.) MONTAGUE BEENABiD. (L.S.) HAMILTON PISH. (LS.) EOBT. c. schenck;. (L.S.) SAMUEL NELSON. (L.S.) EBENEZEE KOCKWOOD HOAR. (L.S.) GEO. H. WILLIAMS. APPENDIX III. Page 16. Chap. 4. RECOGNITION. COMMUNICATIONS WITH FRANCE AND SPAIN, RELATING TO THE SPANISH AMERICAN PROVINCES (a). {Extract of a Memorandum of a Conference between the Prince de Polignac and Mr. Canning, held Oct. 9, 1823. (J) The Prince de Polignac having announced to Mr. Canning that His Excellency was now prepared to enter with Mr. Canning into a frank explanation of the views of his Government respecting the question of Spanish America, in return for a similar communication which Mr. Canning had previously offered to make to the Prince de Polignac on the part of the British Cabinet, Mr. Canning stated : " That the British Cabinet had no disguise or reservation on that " subject; that their opinions and intentions were substantially the " same as were announced to the French Government by the de- " spatch of Mr. Canning to Sir Charles Stuart, of the 31st of March, " which despatch that ambassador communicated to M. de Chateau- " briand, and which had since been published to the world. (n) Presented to both Houses of Parliament, by command of His Majesty, 4th March, 1824. (6) State Papers, vol. ii. pp. 49-53. APPENDIX III. 537 " That the near approach of a crisis, in which the affairs of " Spanish America must naturally occupy a great share of the " attention of both Powers,"made it desirable that there should be " no misunderstanding between them on any part of a subject so " important. " That the British Government were of opinion, that any attempt " to bring Spanish America again under its ancient submission to " Spain must be utterly hopeless, that all negotiation for that pur- " pose would be unsuccessful, and that the prolongation or renewal " of war for the same object would be only a waste of human life, " and an infliction of calamity on both parties, to no end. " That the British Government would, however, not only abstain " from interposing any obstacle, on their part, to any attempt at " negotiation which Spain might think proper to make, but would " aid and countenance such negotiation, provided it were founded " upon a basis which appeared to them to be practicable ; and that " they would, in any case, remain strictly neutral in a war between " Spain and the Colonies, if war should be unhappily prolonged. " But that the junction of any Foreign Power, in an enterprise " of Spain against the Colonies, would be viewed by them as con- " stituting an entirely new question, and one upon which they " must take such decision as the interests of Great Britain might " require. " That the British Government absolutely disclaimed, not only " any desire of appropriating to itself any portion of the Spanish " Colonies, bvit any intention of forming any political connection " with them, beyond that of amity and commercial intercourse. " That in those respects, so far from seeking an exclusive pre- " ference for British subjects over those of foreign States, England " was prepared, and would be contented, to see the mother coun- "try (by virtue of an amicable arrangement) in possession of that " preference, and to be ranked, after her, equally with others, on " the footing of the most favoured nation. " That, completely convinced that the ancient system of the " Colonies could not be restored, the British Government could not " enter into any stipulation binding itself either to refuse or to " delay its recognition of their independence. " That the British Government had no desire to precipitate that " recognition so long as there was any reasonable chance of an " accommodation with the mother country, by which such a recog- " nition might come first from Spain. " But that it could not wait indefinitely for that result ; that it " could not consent to make its recognition of the New States " dependent upon that of Spain ; and that it would consider any " foreign interference, by force or by menace, in the dispute be- " tween Spain and the Colonies, as a motive for recognizing the " latter without delay. 538 APPENDIX III. " That the Mission of Consuls to the several provinces of Spanish " America was no new measure on the part of this country, — that " it was one which had, on the contrary, been delayed, perhaps too " long, in consideration of the state of Spain, after having been " announced to the Spanish Government, in the month of Decem- " ber last, as settled, and even after a list had been furnished to " that Government of the places to which such appointments were " intended to be made. " That such appointments were absolutely necessary for the pro- " tection of British trade in those countries. " That the old pretension of Spain to interdict all trade with those " countries, was, in the opinion of the British Government, alto- " gether obsolete; but that, even if attempted to be enforced against " others, it was, with regard to Great Britain, clearly inapplicable. " That permission to trade with the Spanish Colonies had been " conceded to Great Britain in the year 1810, when the mediation " of Great Britain between Spain and her Colonies was asked by " Spain and granted by Great Britain ; that this mediation, indeed, " was not afterwards employed, because Spain changed her counsel, " but that it was not, therefore, practicable for Great Britain to " withdraw commercial capital once embarked in Spanish America, " and to desist from commercial intercourse once estabhshed. " That it had been ever since distinctly understood that the trade " was open to British subjects, and that the ancient coast laws of " Spain were, so far as regarded them at least, tacitly repealed. " That, in virtue of this understanding, redress had been de- " manded of Spain in 1822, for (among other grievances) seizui-ea " of vessels for alleged infringements of those laws ; which redress " the Spanish Government bound itself by a Convention (now in " course of execution) to afford. " That Great Britain, however, had no desire to set up any " separate right to the free enjoyment of this trade; that she con- " sidered the force of circumstances, and the irreversible progress " of events, to have already determined the question of the existence " of that freedom for all the world; but that, for herself, she claimed, " and would continue to use it ; and should any attempt be made " to dispute that claim, and to renew the obsolete interdiction, such " attempt might be best cut short by a speedy and unqualified re- " cognition of the independence of the Spanish American States. " That, with these general opinions, and with these peculiar " claims, England could not go into a joint deliberation upon the " subject of Spanish America upon an equal footing with other " Powers, whose opinions were less formed upon that question, and " whose interests were less implicated in the decision of it. " That she thought it fair, therefore, to explain beforehand, to " what degree her mind was made up, and her determination taken." The Prince ck' Polignac declared — APPENDIX IIT* 539 " That his Government believed it to be utterly hopeless to reduce " Spanish America to the state of its former relation to Spain. " That France disclaimed, on her part, any intention or desire to " avail herself of the present state of the Colonies, or of the present " situation of France towards Spain, to appropriate to herself any " part of the Spanish possessions in America, or to obtain for her- " self any exclusive advantages. " And that, like England, she would willingly see the mother " country in possession of superior commercial advantages, by " amicable arrangements; and would be contented, like her, to rank,. " after the mother country, among the most favoured nations. " Lastly, that she abjured, in any case, any design of acting " against the Colonies by force of arms." The Prince de Polignac proceeded to say — " That, as to what might be the best arrangement between Spain " and her Colonies, the French Government could not give, nor " venture to form, an opinion, until the King of Spain should be at " liberty. " That they would then be ready to enter upon it, in concert " with their allies, and with Great Britain among the number." In observing upon what Mr. Canning had said, with respect to the peculiar situation of Great Britain, in reference to such a Con- ference, the Prince de Polignac declared — " That he saw no difliculty which should prevent England from " taking part in the Conference, however she might now announce " the difference in the view which she took of the question from " that taken by the allies. The refusal of England to co-operate " in the work of reconciliation might afford reason to think, either " that she did not really wish for that reconciliation, or that she " had some ulterior object in contemplation — two suppositions " equally injurious to the honour and good faith of the British " Cabinet." The Prince de Polignac further declared — " That he could not conceive what could be meant, under the " present circumstances, by a pure and simple acknowledgment of " the independence of the Spanish Colonies ; since, those countries " being actiially distracted by civil wars, there existed no govern- " ment in them which could offer any appearance of solidity ; and " that the acknowledgment of American Independence, as long as " such a state of things continued, appeared to him to be nothing " less than a real sanction of anarchy." The Prince de Polignac added — " That, in the interest of humanity, and especially in that of the " Spanish Colonies, it would be worthy of the European Govern- " ments to concert together the means of calming, in those distant " and scarcely civilised regions, passions blinded by party spirit ; " and to endeavour to bring bacls to a principle of vmion in govern- 540 APPENDIX III. " ment, whether monarchical or aristocratical, people among whom " absurd and dangerous theories were now keeping up agitation and " disunion." Mr. Canning, without entering into discussion upon these abstract principles, contented himself with saying — " That, however desirable the establishment of a monarchical " form of government in any of those provinces might be, on the " one hand, or whatever might be the difficulties in the way of it, " on the other hand, his Government could not take upon itself to " put forward as a condition of their recognition." No. 2. Mr. Canning to Sir W. a Court (c). Foreign Office, January 30, 1824. " Sir, — The Messenger Latchford delivered to me, on the 14th instant, your despatch, inclosing a copy of the Count de Ofalia'a official Note to you of the 26th of December last, with the accom- panying copy of an instruction, which has been addressed, by order of His Catholic Majesty, to his ambassador at Paris, and to his ministers plenipotentiary at the Courts of Vienna and St. Petersburg. " Having laid these papers before the King, I have received His Majesty's commands to direct you to return to them the following answer : — " The purpose of the Spanish instruction is to invite the several Powers, the allies of His Catholic Majesty, to ' establish a Con- ' ference at Paris, in order that their plenipotentiaries, together ' with those of His Catholic Majesty, may aid Spain in adjusting ' the affairs of the revolted countries of America.' " The maintenance of the ' Sovereignty' of Spain over her late colonies is pointed out in this instruction as one specific object of the proposed Conference ; and though an expectation of the employment of force for this object, by the Powers invited to the Conference, is not plainly indicated, it is not distinctly dis- claimed. " The invitation contained in this instruction not being addressed directly to the Government of Great Britain, it may not be necessary to observe upon that part of it which refers to the late ' events in the Peninsula,' as having 'paved the way' for the ' desired co-operation.' (c) State Papers, 1823-4, vol. ii. pp. 68-63. APPENDIX III. 541 " The British Government could not acknowledge an appeal founded upon transactions to which it was no party. But no such appeal was necessary. No variation in the internal affairs of Spain has, at any time, varied the King's desire to see a termi- nation to the evils arising from the protracted struggle between Spain and Spanish America, or His Majesty's disposition to concur in bringing about that termination. " Prom the year 1810, when His Majesty's single mediation was asked and granted to Spain, to effect a reconciliation with her Colonies, — ^the disturbances in which Colonies had then but newly broken out, — ^to the year 1818, when the same task, increased in difficulty by the course and complication of events in America, was proposed to be undertaken by the AUied Powers assembled in Conference at Aix-la-Chapelle, — and from the year 1818 to the present time, — the good offices of His Majesty for this purpose have always been at the service of Spain, within limitations and upon conditions, which have been in each instance explicitly de^ scribed. " Those limitations have uniformly excluded the employment of force or of menace against the Colonies on the part of any mediating Power ; and those conditions have uniformly required the previous statement by Spain of some definite and intelligible proposition, — and the discontinuance on her part of a sj'stem utterly inapplicable to the new relations which had grown up between the American Provinces and other countries. " The fruitless issue of the Conferences at Aix-la-Chapelle would have deterred the British Government from acceding to a pro- posal for again entertaining, in Conference, the question of a mediation between Spain and the American Provinces, even if other circumstances had remained nearly the same. But the events which have followed each other with such rapidity during the last five years, have created so essential a difference, as well in the relative situation in which Spain and the American Pro- vinces stood, and now stand to each other, as in the external relations and the internal circumstances of the Provinces them- selves, that it would be vain to hope that any mediation, not founded on the basis of independence, could now be successful. " The best proof which the British Government can give of the interest which it continues to feel for Spain, is, to state frankly their opinion as to the course most advisable to be pursued by His Catholic Majesty; and to answer, with the like frankness, the question implied in M. Ofalia's instruction, as to the nature and extent of their own relations with Spanish America. " There is no hesitation in answering this question. The sub- jects of His Majesty have for many years carried on trade and formed commercial connections in all the American Provinces which have declared their separation from Spain. 542 APPENDIX III. " This trade vras originally opened with the consent of the " Spanish Government. It has grown gradually to such an extent " as to require some direct protection, by the establishment at " several ports and places in those Provinces of Consuls on the part " of this country — a measure long deferred out of delicacy to Spain, " and not resorted to at last without distinct and timely notification " to the Spanish Government " As to any further step to be taken by His Majesty towards the " acknowledgment of the de facto Governments of America, the " decision must (as has already been stated more than once to " Spain and to other Powers) depend upon various circumstances, " and, among others, upon the reports which the British Govern- " ment may receive of the actual state of affairs in the several " American Provinces. " But it appears manifest to the British Government, that if so " large a portion of the globe should remain much longer without "" any recognised political existence, or any definite political con- " nection with the established Governments of Europe, the conse- " quences of such a state of things must be at once most embar- " rassing to those Governments, and most injurious to the interests " of all European nations. " Eor these reasons, and not from mere views of selfish policy, the " British Government is decidedly of opinion that the recognition " of such of the new States as have establised de facto their separate " political existence cannot be much longer delayed. " The British Government have no desire to anticipate Spain in " that recognition. On the contrary, it is on every account their " wish that His Catholic Majesty should have the grace and the " advantage of leading the way, in that recognition, among the " Powers of Europe. But the Court of Madrid must be aware " that the discretion of His Majesty in this respect cannot be in- " definitely bound up by that of His Catholic Majesty; and that " even before many months elapse, the desire now sincerely felt by " the British Government, to leave this precedency to Spain, may " be overborne by considerations of a more comprehensive nature — " considerations regarding not only the essential interests of His " Majesty's subjects, but the relations of the old world with " the new. " Should Spain resolve to avail herself of the opportunity yet " within her power, the British Government would, if the Court of " Madrid desired it, willingly afford its countenance and aid to a " negotiation, commensed on that only basis which appears to them " to be now practicable; and would see, without reluctance, the " conclusion, through a negotiation on that basis, of an arrangement " by which the mother country should be secured in the enjoyment " of commercial advantages superior to those conceded to other " nations. APPENDIX III. 543 " For herself, Great Britain asks no exclusive privileges of " trade, no invidious preference, but equal freedom of commerce " for all. " If Spain shall determine to persevere in other counsels, it cannot " but be expected that Great Britain must take her own course upon " tJais matter, when the time for taking it shall arrive, of which " Spain shall have full and early intimation. " Nothing that is here stated can occasion to the Spanish Govern- " ment any surprise. " In my despatch to Sir Charles Stuart of the 31st of March, " 1823, which was communicated to the Spanish Government, the " opinion was distinctly expressed, that ' time and the course of " ' events had substantially decided the separation of the Colonies " ' from the mother country, although the formal recognition of those " ' Provinces as Independent States, by His Majesty, might be " ' hastened or retarded by various external circumstances, as well as " ' by the more or less satisfactory progress in each State, towards " ' a regular and settled form of Government.' " At a subsequent period, in a communication (d) made, 'in the " first instance, to France, and afterwards to other Powers (e), as " well as to Spain, the same opinions were repeated, with this specific " addition — that in either of two cases (now happily not likely to " occur) — ^in that of any attempt on the part of Spain to revive the " obsolete interdiction of intercourse with countries over which she " has no longer any actual dominion, or in that of the employment " of foreign assistance to re-establish her dominion in those coun- " tries, by force of arms, the recognition of such new States by His " Majesty would be decided and immediate. " After thus declaring to you, for the information of the Court " of Madrid, the deliberate opinion of the British Government on " the points on which Spain requires the advice of her allies, it does " not appear to the British Cabinet at all necessary to go into a " Conference to declare that opinion anew ; even if it were perfectly " clear, from the tenour of M. Ofalia's instruction, that Great " Britain is in fact included in the invitation to the Conference at " Paris. " Every one of the Powers so invited has been constantly and " unreservedly apprised, not only of each step which the British " Government has taken, but of every opinion which it has formed " on this subject : and this despatch will be communicated to " them all. " If those Powers should severally come to the same conclusion " with Great Britain, the concurrent expression of their several (d) The Memorandum of Conference, No. 1. (e) Austria, Russia, Prussia, Portugal, the Netherlands, and the United States of America, 544 APPENDIX HI. " opinions cannot have less weight in the judgment of Spain, and " must naturally be more acceptable to her feelings, than if such " concurrence, being the result of a Conference of Five Powers, " should carry the appearance of a concerted dictation. " If (unhappily, as we think) the allies, or any of them, should " come to a different conclusion, we shall at least have avoided the " inconvenience of a discussion, by which our own opinion could " not have been changed ; we shall have avoided an appearance of " myste'-y, by which the jealousy of other parties might have been " excited; we shall have avoided a delay, which the state of the " question may hardly allow. " Meanwhile, this explicit recapitulation of the whole course of " our sentiments and of our proceedings on this momentous sub- " ject, must at once acquit us of any indisposition to answer the " call of Spain for friendly counsel, and protect us against the " suspicion of having any purpose to conceal ftom Spain or from " the world. " I am, &c., " George Canning. " The Eight Hon. Sir W. a Court, G.C.B., &c. &c. &c." Note of Mr. Secretary Canning to the Chevalier de Los Bios, relative to Spanish America (/). "Foreign Office, March 25, 1825. " The undersigned. His Majesty's Principal Secretary of State for " Foreign Affairs, is commanded by his Sovereign to deliver to the " Chevalier de Los Eios, for the purpose of being transmitted to " his Court, the following reply to the official Note, addressed by " His Excellency M. Zea to his Majesty's Charge d' Affaires at " Madrid, on the 21st of January. " So large a portion of the official Note of M. Zea was founded " upon a denial of the facts which had been reported to the British " Government, with respect to the state of several of the countries " of Spanish America, and upon an anticipation of events expected " by the Court of Spain to take place in those countries, by which " the credibility of the reports transmitted to the British Govern- " ment would be effectually disproved, that it has been thought " advisable to await the issue of the expected events in Spanish " America, rather than to confront evidence with evidence, and to " discuss probabilities and conjectures. " Of that issue, decisive as it appears to be, the undersigned is " directed to say no more than that it is a great satisfaction to the (/) State Papers, 1824-5, vol. xii. pp. 909-15. APPENDIX III. 545 " British Government that it had actually taken place before the " intentions of the British Government towards the other countries " of Spanish America were announced. Those intentions, there- " fore, cannot by possibility have had the slightest influence upon " the result of the war in Peru. " With this single observation, the undersigned is directed to " pass over all that part of M. Zea's Note which turns upon the " supposed incorrectness of the information on which the decision " of the British Government was founded. " The questions which remain to be examined are, whether, in " treating with de facto Governments, now established beyond the " danger of any external assailment. Great Britain has violated " either any general principle of International Law, or any positive " obligation of Treaty. " To begin with the latter, as the more specific accusation. " M. Zea brings forward, repeatedly, the general charge of vio- " lated Treaties; but as he specifies only iwo — that of 1809 and " that of 1814, it may be presumed that he relies on them alone " to substantiate this charge. " First, as to the Treaty of 1809 :— " That Treaty was made at the beginning of the Spanish struggle " against France, and was directed wholly, and in terms not to be " misapprehended, to the circumstances of the moment at which it " was made. It was a Treaty of Peace, putting an end to the war, " in which we had been, since 1804, engaged with Spain. It is " expressly described in the first Article as a Treaty of ' Alli- " ance during the War,' in which we were engaged, jointly with " Spain against France. All the stipulations of the Treaty had " evident reference to the declared determination of the then " Ruler of Prance, to uphold a branch of his own family upon the " Throne of Spain and of the Indies; and they undoubtedly pledged " us to Spain not to lay down our arms until that design should be " defeated in Spain, and the pretension altogether abandoned as to " America — ■& pledge which it is not, and cannot be denied, that " Great Britain amply redeemed. But those objects once accom- " plished, the stipulations of the Treaty were fulfilled, and its obli- " gations necessarily expired, together with the matter to which " the}' related. " In effect, at the happy conclusion of the war in the Peninsula, " and after the restoration, by British assistance, of His Catholic " Majesty to the throne of his ancestors, the Treaty of 1809 was " replaced by the Treaty of 1814. And what does that Treaty " contain ? — First, the expression of an earnest wish on the part " of His Majesty that Spanish America may be re-united to the " Spanish' Monarchy; and, secondly, an engagement to prohibit " British subjects firom supplying the Spanish Americans with " munitions of war. This engagement was instantly carried into VOL. II. N N 546 APPENDIX III. " effect by an Order in Council of 1814. And in ftirtherance of " the like object, beyond the obligation of the Treaty, an Act of " Parliament was passed in 1819, prohibiting the service of British " subjects in the ranks of the resisting Colonies. " That the wish expressed in tliis Treaty was sincere, the proof " is to be found, not only in the measures above mentioned, but " in the repeated offers of Great Britain to mediate belAveen " Spain and her colonies. Nor were these offers of mediation, " as M. de Zea alleges, uniformly founded on the single basis of the " admission by Spaiu of the independence of the Spanish provinces. " Tears had elapsed, and many opportunities had been missed, " of negotiating on better terms for Spain, before that basis was " assumed to be the only one on which negotiation could be success- " fiilly opened. " It was not assumed in 1812, when our mediation was offered to " the Cortes. " It was not assumed in 1815, when Spain asked our mediation, " but refused to state the terms to which she was willing to agree. "It was not assumed in 1818, in the Conferences at Aix-la- '■ Chapelle, in which Conferences the question of an arrangement " between Spain and her Americas was, for the first and last time, " discussed between the Great Powers of Europe. " After the silence, indeed, which Spain observed, as to the '' opinion of the Powers assisting at those Conferences, when laid " before her, two things became perfectly clear ; the first, that Spain " had, at that time, no serious intention of offering any terms, such " as the Spanish American Provinces were likely to accept ; the " second, that any subsequent reference of the subject to a Con- '• grass must be wholly fruitless and unsatisfactory. From that " time forth, Great Britain abstained from stirring the subject of " negotiation with the Colonies, tiU, in the month of May, 1822, " Spain spontaneously announced to Great Britain that she had " measures in contemplation for the pacification of her Americas, " on a basis entirely new, which basis, however, was not explicitly " described. '" In answer to that notification, Spain was exhorted by Great " Britain to hasten, as much as possible, her negotiation with the " Colonies, as the course of events was evidently so rapid as not to " admit of a much longer delay; — ^but no suggestion was even then " brought forward by Great Britain as to the adoption of the basis " of independence. " The first suggestion of that basis came, in fact, from the Govem- " ment of Spain itself, in the month of November, 1822, when the " British Minister at Madrid received an intimation that the Cortes " meditated opening negotiations with the Colonies, on the basis of " Colonial Independence — negotiations which were in feet subse- " quently opened, and carried to a successful termination, with APPENDIX III. 547 " Buenos Ayrea, though they were afterwards disavowed by Plis " Catholic Majesty. " It was not till after this last-mentioned communication from " the Spanish Government, that Great Britain expressed the opinion " which she entertained, as to the hopelessness of negotiating upon " any other basis than that then first suggested by the Spanish " Government. " This opinion, stated (as has been said), in the first instance, ' confidentially to Spain, was, nearly a twelvemonth afterwards, " that is to say, in the month of October, 1823, mentioned by the " undersigned, in a Conference with the French Ambassador in " London, the substance of which Conference was communicated " to Spain, and to other Powers. It was repeated and enforced in " the despatch from the undersigned to Sir William a Court, in " January, 1824. " Nothing, therefore, can be less exact than the supposition that " Great Britain has uniformly put forward the basis of Independence " as the sine qua non condition of her counsel and assistance to " Spain, in negotiation with her Colonies. " To come now to the Second Charge against Great Britain, — " the alleged violation of general International Law. Has it ever " been admitted as an axiom, or ever been observed by any nation " or Government as a practical maxim, that no circumstances, and " no time, should entitle a de facto Government to recognition ? — " or should entitle Third Powers, who may have a deep interest in " defining and establishing their relations with a de facto Govern- " ment, to do so ? " Such a proceeding on the part of Third Powers, undoubtedly " does not decide the question of right against the motlier country. " The Netherlands had thrown off the supremacy of Spain long " before the end of the sixteenth century ; but that supremacy was " not formally renounced by Spain till the Treaty of "Westphalia " in 1648. Portugal declared, in 1640, her independence of the "Spanish Monarchy; but it was not till 1668 that Spain, by " Treaty, acknowledged that independence. " During each of these intervals, the abstract rights of Spain " may be said to have remained unextinguished. But Third Powers " did not, in either of these instances, wait the slow conviction of " Spain, before they thought themselves warranted to establish " direct relations, and even to contract intimate alliances with the " EepubUc of the United Netherlands, as well as with the new " monarchy of the House of Braganza. " The separation of the Spanish Colonies from Spain has been " neither our work nor our wish. Events, in which the British " Government had no participation, decided that separation, — a " separation which, we are still of opinion, might have been averted, " if our counsels had been listened to in time. But out of that N N 2 548 APPENDIX HI " separation grew a state of things, to which it was the duty of the " British Government (in proportion as it became the plain and " legitimate interest of the nation whose welfare is committed to its " charge) to conform its measures, as well as its language, not " hastily and precipitately, but with due deliberation and circum- " spection. " To continue to call that a possession of Spain, in which all " Spanish occupation and power had been actually extinguished " and eifaced, could render no practical service to the mother " coimtry ; but it would have risked the peace of the world. For " all political communities are responsible to other political com- " munities for their conduct ; that is, they are bound to perform the " ordinary international duties, and to afford redress for any viola- " tion of the rights of others by their citizens and subjects. " Now, either the mother country must have continued respon- " sible for acts over which it could no longer exercise the shadow " of a control, or the inhabitants of those countries, whose inde- " pendent political existence was, in fact, established, but to whom " the acknowledgment of that independence was denied, must have " been placed in a situation, in which they were either wholly irre- " sponsible for all their actions, or were to be visited, for such of " those actions as might furnish ground of complaint to other " nations, with the punishment due to pirates and outlaws. " If the former of these alternatives — the total irresponsibility of " unrecognised States — be too absurd to be maintained ; and if the " latter — the treatment of their inhabitants as pirates and outlaws — " be too monstrous to be applied, for an indefinite length of time, to " a large portion of the habitable globe, no other choice remained " for Great Britain, or for any country having intercourse with the " Spanish American Provinces, but to recognise, in due time, their " pohtical existence as States, and thus to bring them within the " pale of those rights and duties which civilised nations are bound " mutually to respect, and are entitled reciprocally to claim from " each other. " The example of the late Revolution in Fi-anoe, and of the ulti- " mate happy restoration of His Majesty, Louis XVIII., is pleaded " by M. Zea in illustration of the principle of unextinguishable right " in a legitimate Sovereign, and of the respect to which that right " is entitled from all foreign Pov.'ers ; and he calls upon Great " Britain, in justice to her own consistency, to act with the same " reserve towards the new States of Spanish Ameiica, which she " employed, so much to her honour, towards revolutionary France. " But can M. Zea need to be reminded that every Power in " Europe, and specifically Spain amongst the foremost, not only " acknowledged the several successive Governments, de Jacto, by " which the House of Bourbon was first expelled from the throne " of France, and afterwards kept for near a quarter of a century APPENDIX III. 549 " out of possession of it, but contracted intimate alliances with them " aU ; and, above all, with that which M. Zea justly describes as the " strongest of de facto Governments — the Government of Bonaparte, " against whom, not any principle of respect for the rights of legi- " timate monarchy, but his own ungovernable ambition, finally " brought combined Europe into the field ? " There is no use in endeavouring to give a specious colouring to " facts which are now the property of history. " The undersigned is, therefore, compelled to add that Great " Britain herself cannot justly accept the praise which M. Zea is " willing to ascribe to her in this respect ; nor can she claim to be " altogether exempted irom the general charge of having treated " with the Powers of the French Revolution. " It is true, indeed, that up to the year 1796 she abstained from " treating with revolutionary France, long after other Powers of " Europe had set her the example. But the reasons alleged in Par- " liameut, and in State Papers, for that abstinence, was the unsettled " state of the French Government. And it cannot be denied tkat, " both in 1796 and 1797, Great Britain opened a negotiation for " peace with the Directory of France — a negotiation, the favourable " conclusion of which would have implied a recognition of that " form of Government ; that in 1801, she made peace with the Gon- " sulate ; that if, in 1806, she did not conclude a Treaty with " Bonaparte, Emperor of France, the negotiation was broken off " merely on a question of terms; and that if, from 1808 to 1814, " she steadily refused to listen to any overtures from France, she " did so, declaredly and notoriously, on account of Spain alone, " whom Bonaparte pertinaciously refused to admit as party to the " negotiation. " Nay, further, it cannot be denied that, even in 1814, the year " in which the Bourbon Dynasty was eventually restored, peace " would have been made by Great Britain with Bonaparte, if he " had not been unreasonable in his demands; and Spain cannot be " ignorant that, even after Bonaparte was set aside, there was " question among the allies of the possible expediency of placing " some other than a Bourbon on the throne of France. " The appeal, therefore, to the conduct of the Powers of Europe, " and even to that of Great Britain herself, with respect to the " French Revolution, does but recall abundant instances of the " recognition of de facto Governments; by Great Britain, perhaps, " later and more reluctantly than by others, but by Great Britain " herself, however reluctant, after the example set to her by the " other Powers of Europe, and specifically by Spain. " There are two other points in M. Zea's Note, which appear to " call for particular observation. " M. Zea declares, that the King of Spain will never recognise " the new Slates of Spanish America, and that His Majesty will 550 APPENDIX III. " never cease to employ tte force of arms against his rebellious " sul:)jects in that part of the world. " We have neither the pretension nor the desire to control His " Catholic Majesty's conduct ; but this declaration of M. Zea com- " prises a complete justification of our conduct, in having taken the " opportunity which, to us, seemed ripe for placing our relations " with the new States of America on a definite footing. For this " declaration plainly shows, that the complaint against us is not " merely as to the mode or the time of our advances towards those " States ; it shows that the dispute between us and Spain is not " merely as to the question of fact, whether the internal condition " of any of ihose States be such as to justify the entering into defi- " nite relations with them ; that it was not merely a reasonable " delay for the purpose of verifying contradictory reports, and of " affording opportunity for friendly negotiation, that was required " of us ; it shows that no extent of forbearance on our part would '' have satisfied Spain ; and that, defer our advances towards the " new States as long as we might, we should stiU have had to " make them without the consent of Spain ; for that Spain is de- " termined against all compromise, under any circumstances and " at any time, and is resolved upon interminable war with her late " Colonies in America. " M. Zea concludes with declaring, that His Catholic Majesty " will protest, in the most solemn manner, against the measures " announced by the British Government, as violating existing " Treaties, and the imprescriptible rights of the throne of Spain. " Against what will Spain protest ? " It has been proved that no Treaties are violated by us ; and " we admit that no question of right is decided, by our recognition " of the new States of America. " But, if the argument upon which this declaration is founded " be true, it is eternal ; and the offence of which we are guilty, in " placing our intercourse with those countries under the protection " of Treaties, is one of which no time and no circumstances could, " in the view of Spain, have mitigated the character. " Having thus ^entered, with great pain and unwillingness, into " the several topics of M. Zea's Note, the undersigned is directed, " in conclusion, to express the anxious hope of his Government, " that a discussion, now wholly without object, may be allowed " here to close. The undersigned is directed to declare to the " Spanish Minister, that no feelings of ill-wiU, or even of indifference, " to the interests of His Catholic Majesty, has prompted the steps " which His Majesty's Government has taken, — that His Majesty " still cherishes an anxious wish for the welfare of Spain, — and " that His Majesty still retains the disjjosition, and commands the " undersigned again to renew to His Catholic Majesty's Govern- " ment the offer, to employ His Majesty's good offices, for the APPENDIX IIT. 551 " bringing about of any amicable arrangement which may yet be " practicable, between His Catholic Majesty and the countries of " America which have separated themselves from Spain. " The undersigned, &c., " George Canning. " The Chevalier de Los Bios." REPLY OF MR. SECRETARY CANNING TO A LETTER OF M. RADIOS RELATIVE TO THE " RUSSIAN MEMOIR ON THE PACIFICATION OF GREECE" (g). Foreign Office, Decemher 1st, 1824. " Sir, " I HAVE to acknowledge the receipt of the letter which you did me " the honour to address to me on the ^-fth of August (but which " reached my hands only on the 4th of November), expressing the " opinion of the Greek Provisional Government upon a paper " which has been published in the Gazettes of Europe, purporting " to be a Plan of Pacification for Greece, drawn up by the Court " of St. Petersburg. " That the publication of the paper in question is unauthorised " cannot be doubted. Whether the paper itself be authentic, it is " not for me to admit or to deny ; but it is due to the Court of St. " Petersburg to declare to you, that any plan of pacification " emanating from that Court would be drawn up (as the British " Government sincerely believe) in anything but an unfriendly " disposition towards Greece ; that no such plan has been definitely " settled (as your letter appears to assume) with the intention of " imposing it either, upon Greece or upon the Turkish Government; " and that whatever plan the Emperor of Eussia might have in " contemplation would be submitted by His Imperial Majesty to " several of the Powers of Europe, His Imperial Majesty's allies, for " their consideration, before any proposition founded thereupon " would be made to the contending parties. The Emperor of " Eussia had, it is true, suggested to his allies the expediency of " proposing, simultaneously to the Porte and to the Provisional " Government of Greece, a suspension of hostilities, for the pur- '' pose of allowing time for an amicable intervention between them. " Nor would the British Government have refused, at a proper time, " to be party to that proposal. " It is but just to add that the paper which has attracted the " indignation of the Greek Provisional Government has been viewed " with no less indignation by the Divan. " While the Greeks profess an insurmountable abhorrence of any (ff) State Pnpera, vol. xii. 1824-5, p. 909 et seq. 552 APPENDIX III. " settlement short of the establishment of their independence as a " nation, the Divan abjure all modes of reconciliation short of an " unqualified re-establishment of their sovereignty over Greece. " Between two parties so disposed there can, indeed, be little " hope of an acceptable and successful mediation. But, to have " felt and expressed a desire to mediate, before the extreme vehe- '' mence of these opposite resolutions was known, and while the " varying fortune of the war appeared to furnish to both parties not " unreasonable motives for a compromise, surely cannot be imputed, " either to Russia, if she originated the project of such a compro- " mise, or to those who might have been prepared to deliberate in " concert with her upon it, as a crime. " The paper, purporting to be a Russian memoir, contains the " elements of a compromise, though not adjusted, perhaps, exactly " in the proportions in which they might finally have been arranged " for proposal to the belligerent parties. " If the sovereignty of the Turks were not to be absolutely " restored, nor the independence of the Greeks to be absolutely " acknowledged (to propose either of which extremes would have " been, not to mediate, but to take a decided part in the contest), " there was necessarily no other choice than to qualify, in some mode " and degree, the sovereignty of the one and the independence " of the other ; and the mode and degree of that qualification seemed " to constitiite the question for enquiry and deliberation. " Either party, no doubt, had it in its power to defeat any plan " of compromise, however rational in its principles or impartial in " its provisions. And the previous knowledge that both parties " would concur in rejecting any plan of compromise that could be " devised renders any hope of successful intervention, at the present " moment, utterly vain. " On the remainder of your letter, which, in effect, calls upon " the British Government to take part with the Greeks in the " struggle for their independence, comparing their merits and " claims with those of the Provinces of Spanish America, which " have separated themselves fi:om the mother country, I have only " to observe, that, with respect to the contest between Spain and " the several countries of Spanish America, Great Britain has pro- " fessed and maintained a strict neutrality ; and that the hke neu- " trality has been observed by Great Britain in the contest now " raging in Greece. The belligerent rights of the Greeks have " been uniformly respected' and if the British Government has " found itself compelled, on a recent occasion, to repress the excess " to which certain of those rights were attempted to be carried, the " British Government is satisfied that such a necessity will not " occur again. " The Provisional Government of Greece may rely upon the " continuance of the same scrupulous neutrality. They may be APPENDIX III. 553 " assured, not only that Great Britain would not be concerned in " any attempt (if such attempt were in contemplation) to force upon " them a plan of pacification contrary to their wishes, but that, if " they should at any time hereafter think fit to solicit our " mediation, we should be ready to tender it to the Porte, and, if " accepted by the Porte, to do our best to carry it into effect, con- " jointly with other Powers, whose co-operation would at once give " facility to any arrangement, and afford the best security for ita " duration. " This appears to the British Government all that can reasonably " be asked of them. They cannot accuse themselves of having in " any way, directly or indirectly, instigated the commencement of " the Greek enterprise, nor of having in any way interfered in it3 " progress. " Connected with the Porte by the established relations of amity, " and by the ancient obligations of Treaties, which the Porte has " not violated, it surely cannot be expected that England should " engage in unprovoked hostilities against that Power in a quarrel " not her own. " I trust, Sir, that the exposition which I have thus the honour " to address to you will be considered as affording sufficient answer " to any suspicions or imputations which error or intrigue may " have propagated against the intentions of the British Government " towards Greece, and will be accepted as a proof at once of the " purity of our views, and of the frankness with which we are ready " to declare them. " I am, &c., " George Canning. " The Secretary of the Provisional Government of Greece." " PKOTOCOLE DE LA C0Nr:6HENCE TENUE AU FOREIGN OFFICE, LE 19 rivEiER 1831 (A). " Pe^Sens : — Les Plenipotentiaires d'Autriche, de France, de la " Grande-Bretagae, de Prusse, et de Eussie. " Les Plenipotentiaires des Cours d'Autriche, de Prance, de la " Grande-Bretagne, de Prusse, et de Russie, s'^tant assembles, ont " porte toute leur attention sur les interpretations diverses donndea " au Protocole de la Conference de Londres, en date du 20 Di- " cembre 1830, et aux principaux Actes dont il a et6 suivi. Les " deliberations des Plenipotentiaires les ont conduits a reconnaitre (h) Protocols of Conferences in London relative to Belyimn, 1830-) part i. No. 19, pp. 59-65. 554 APPENDIX III. " unanimement, quails doivent a la position des Cinq Cours, conime " a la cause de la paix generals, qui est leur propre cause, et celle de " la civilisation Europeenne, de rappeler id le grand principe de " droit public, dont les Actes de la Conference de Londres n'ontfait " gu'offrij' une application salutaire et constante. " D^apres ce principe d'un ordre superieur, les Traites ne perdent " pas leur puissance, quels que soient les changemens qui inter- " viennent dans V organisation interieure des peuples. Pour juger " de rapplication que les Cinq Coirrs ont faite de ce meme principe, " pour apprecier les determinations qu'elles ont prises relatiyement " k la Belgique, il sufEt de se reporter a I'epoque de I'ann^e 1814. " A cette ^poque les Provinces Beiges ^taient occupees militaire- " ment par I'Autriclie, la Grande-Bretagne, la Prusse, et la Russie ; " et les droits que ces Puissances exer^aient sur elles furent com- " plet^s par la renonciation de la Prance a la possession de ces " mimes Provinces. Mais la renonciation de la France n'eut pas " lieu au profit des Puissances occupantes. EUe tint a une pensee " d'un ordre plus eleve. Les Puissances, et la France elle-mgme, " egalement disinteressees alors comme aujourd'hui dans leurs vues " sur la Belgique, en garderent la disposition et non la souverainete, " dans la seule intention de faire concourir les Provinces Beiges a " V elablissement d'un juste equilibre en Europe, et au maintien de " la paix generate. Ce fut cette intention qui presida a leurs stipu- " lations ulterieures ; ce fut elle qui unit la Belgique a la HoUande ; " ce fut elle qui porta les Puissances h. assurer des-lors aux Beiges " le double bienfait d'institutions libres, et d'un commerce fecond " pour eux en ricliesse et en developpement d'industrie. " L'union de la Belgique avec la Hollande se brisa. Des com- " munications officielles ne tarderent pas a convaincre les Cinq " Cours que les moyens primitivement destines a la maintenir, ne " pourraient plus ni la retablir pour le moment, ni la conserver par " la suite ; et que desormais, au lieu de confondre les affections et " le bonheur des deux peuples, elle ne mettrait en presence que les " passions et les haines, elle ne ferait jaillir de leur choc que la " guerre avec tous ses desastres. II n'appartenait pas aux Puis- " sauces de juger des causes qui venaient de rompreles liens qu'elles " avaient formes. Mais quand elles voyaient ces liens rompus, il leur " appartenait d'atteindre encore I'objet qu'elles s'etaient propose en " les formant. " II leur appartenait d'asstuer, h. la faveur de combinaisons nou- " velies, cette tranquillity de I'Europe, dont I'lmion de la Belgique " avec la Hollande avait constitue une des bases. Les Puissances " y ^taient imp^rieusement appel6es. Elles avaient le droit, et les " 6vfenemens leur imposaient le devoir, d'empecher que les Provinces " Beiges, devenues independantes, ne portassent atteinte a la securite " generale, et a r(5qui]ibre Europeen. " Un tel devoir reudait inutile tout concoiirs etranger. POlir APPENDIX III. 555 " agir ensemble, lea Puissances n'avaient qu'i consulter leurs " Traites, qa'k mesurer I'^tendue des dangers que leur inaction ou " leur desaccord aurait fait naitre. Les demarches des Cinq Coura " k I'efFet d'amener la cessation de la lutte entre la HoUande et " la Belgique, et leur ferme resolution de mettre fin a toute mesure " qui, de part ou d'autre, aurait eu un caractere hostile, furent les " premieres consequences de I'identit^ de leurs opinions sur la valeur " et les principes des transactions solennelles qui les lient. " L'effusion du sang s'arr^ta ; la Hollande, la Belgique, et meme " les Etats voisins, leur sont egalemeut redevables de ce bienfait. " La seconde application des memes principes eut lieu dans le " Protooole du 20 Decembre 1830. " A I'expose des motifs qui determinaient les Cinq Cours, cet " Acte assooia la reserve des devoirs dent la Belgique resterait " charg^e envers I'Europe, tout en voyant s'accomplir ses vceux de " separation et d'independance. " Chaque nation a ses droits particuliers ; mais I'Europe aussi a " son droit — c'est I'ordre social qui le lui a donne. " Les Traites qui regissent I'Europe, la Belgique devenue inde- " pendante, les trouvait faits et en vigueur. EUe devait done lea " respecter, et ne pouvait pas les enfreindre. En les respectant, " elle se conciliait avec I'interet et le repos de la grande commu- " naute des Etats Europeens. En les enfreignant, elle eut amen6 " la confusion et la guerre. Les Puissances seules pouvaient pr^- " venir ce malheur, et puisqu'elles le pouvaient, elles le devaient. " Elles devaient faire pr^valoir la salutaire maxime, que les ^vfene- " mens qui font naitre en Europe un Etat nouveau ne lui donnent " pas plus le droit d'alt^rer le systeme g^n^ral, dans lequel il entre, " que les changemens survenus dans la condition d'un Etat ancien, " ne I'autorisent k se croire delie de ses engagemens anterieurs. " Maxime de tous les peuples civilises ; maxime qui se rattache " au principe meme d'apres lequel les Etats survivent a leurs Gou- " vememens, et les obligations imprescriptibles des Traites, a ceux " qui les contractent ; maxime, enfin, qu'on n'oublierait pas, sans " faire retrograder la civilisation, dont la morale et la foi publiques " sont heureusement et les premieres consequences et les premieres " garanties. " Le Protooole du 20 Decembre fut I'expression de ces verites ; " U statua, ' Que la Conference s'occuperait de discuter et de con- " certer les nouveaux arrangemens les plus propres a combiner " I'independance future de la Belgique avec les stipulations des " Traites, avec les interSts et la securite des autres Etats, et avec la " conservation de I'equilibre Buropeen. " Les Puissances venaient d'indiquer ainsi le but auquel elles " devaient marcher. Elles y marchferent fortes de la purete de leurs " intentions, et de leur impartialite. Tandis que, d'un c6te, par " leur Protooole du 18 Janvier, elles repoussaient des pretentions 556 APPENDIX III. " qui seront toujours inadmissibles, de I'autre, elles pesaient avec le " soin le plus scrupuleirx toutes les opinions qui ^talent mutuellement " (^raises, tous les titres qui ^taient reciproquement invoques. De " cette discussion, approfondie des diverses communications faites " par les Plenipotentiaires de Sa Majesty le Eoi des Pa)'s-Bas, et par " les Commissaires Beiges, resulta le Protocole definitif du 20 Jan- " Tier 1831. " II etait k prevoir que la premiere ardeur d'une independance " naissante tendrait a fi-anchir les justes bornes des Traites et des " obligations qui en derivent. Les Cinq Cours ne pouvaient nean- " moins admettre en faveur des Beiges le droit de faire des con- " quetes sur la Hollande, ni sur d'autres Etats. Mais obligees de '' resoudre des questions de territoire essentiellement en rapport " avec leurs propres Conventions et leurs propres interets, les Cinq " Cours ne consacrerent, a I'^gard de la Belgique, que les maximes " dont elles s'etaient faites a elles-memes une loi rigoureuse. " Assurement elles ne sortaient ni des bornes de la justice et de " I'equite, ni des regies d'une saine politique, lorsqu'en adoptant " impartialement les limites qui separaient la Belgique de la Hol- " lande avant leur reunion, elles ne refusaient aux Beiges que le " pouvoir d'envahir : ce pouvoir elles ont rejette, parcequ'elles le '■ considerent comme subversif de la paix et de I'ordre social. " Les Puissances avaient encore a deliberer sur d'autres ques- " tions qui se rattachaient a leurs Traites, et qui ne pouvaient " par consequent etre soumises a des decisions nouvelles, sans leur " concours direct. " D'aprfes le Protocole du 20 D^cembre, les Instructions et les " Pleins Pouvoirs demandes pour les Commissaires Beiges, qui " seraient envoyes a Londres, devaient embrasser tous les objets " de la negociation. Cependant, ces Commissaires arriverent sans " autorite suffisante, et, sur plusieurs points importans, sans infor- " mations; et les circonstances n'admettaient point de retard. " Les Puissances, par le Protocole du 27 Janvier, ne firent nean- " moins d'une part qu'enumerer les charges inherentes, soit au " Territoire Beige, soit au Territoire HoUandais, et se bornerent a " pi-oposer de I'autre, des arrangemens fondes sur une reciprocite " de concessions, sur les moyens de conserver a la Belgique les " marches qui ont le plus contribue a sa richesse, et sur la notoriety " meme des Budgets publics du Royaume des Pays-Bas. " Dans ces arrangemens la mediation des Puissances sera tou- " jours requise ; car, sans elle, ni les parties interess^es ne par- " viendraient k s'entendre, ni les stipulations auxquelles les Cinq " Cours ont pris en 1814 et 1815 une part immediate, ne pour- " raient se modifier. " L'adh^sion de Sa Majeste le Eoi des Pays-Bas aux Protocoles " du 20 et du 27 Janvier 1831, a r^pondu aux soins de la Conffi- " reuce de Londres. APPENDIX III. 557 " Le nouveau mode d'existence de la Belgique, et sa neutrality, " re^nrent ainsi tme sanction dont ils ne pouvaient se passer. II " ne restait plus h. la Conference que d'arreter ses resolutions rela- " tives a la protestation faite en Belgique centre le premier de ces " Protocoles, d'autant plus important qu'il est fondamental. " Cette protestation invoque d'abord un droit de post-liminio qui " n'appartient qu'aux Etats ind^pendans, et qui ne saurait par " consequent appartenir a la Belgique, puisqu'elle n'a jamais et6 " compt^e au nombre de ces Etats. Cette meme protestation " mentionne en outre des cessions faites k une Puissance tierce, et " non k la Belgique, qui ne les a pas obtenus, et qui ne pent s'en " pr^valoir. " La nullity de semblables pretentions est ^vidente. Loin de " porter atteinte au Territoire des anciennes Provinces Beiges, lea " Puissances n'ont fait que declarer et maintenir rint^grite des " Etats qui I'avoisinent. Loin de resserrer les limitea de ces Pro- " vinces, elles y ont compris la Principaut^ de Liege, qui n'en faisait " point partie autrefois. " Du reste, tout ce que la Belgique pouvait desirer, elle I'a ob- " tenu : separation d'avec la Hollande, independance, sflrete ex- " terieure, garantie de son Territoire et de sa neutralite, libre " navigation des fleuves qui lui servent de debouches, et paisible " jouissance de ses libertes nationales. " Tels sont les arrangemens auxquels la protestation dont il s'agit " oppose le dessein, publiquement avoue, de ne respecter ni les " possessions ni les droits des Etats limitrophes. " Les Pienipotentiaires des Cinq Cours, considerant que de pa- " reilles vues sont des vues de conquete, incompatibles avec les " Traites existans, avec la paix de I'Europe, et par consequent avec " la neutralite et I'independance de la Belgique, dedarent : — " 1°- Qu'il demeure entendu, comme il I'a ete des I'origine, que " les arrangemens arrStes par le Protocole du 20 Janvier 1831, sont " des arrangemens fondamentaux et irrevocables. " 2^. Que I'independance de la Belgique ne sera reconnue par " les Cinq Puissances, qu'aux conditions et dans les limites qui " resultent des dits arrangemens du 20 Janvier 1831. " 3°. Que le principe de la neutralite et de I'inviolabilite du " Territoire Beige, dans les limites oi-dessus mentionnees, reste en " vigueur, et obligatoire pour les Cinq Puissances. " 4°. Que les Cinq Puissances, fideles k leurs engagemens, se re- " connaissent le pleia droit de declarer, que le Souverain de la " Belgique doit repondre par sa position personneUe au principe " d'existence de la Belgique meme, satisfaire h. la sCirete des autres " Etats, accepter sans aucune restriction, comme I'avait fait Sa " Majeste le Eoi des Pays-Bas par le Protocole du 21 Juillet 1814, " tous les arrangemens fondamentaux renfermes dans le Protocole 558 APPENDIX III. " du 20 Janvier 1831, et ^tre k mime d'en assurer aux Beiges la " paisible jouissance. " 5°. Que ces premieres conditions remplies, les Cinq Puissances " continueront d'employer leurs soins et leurs boiis offices pour " amener I'adoption reciproque et la mise k execution des autres " arrangemens necessites par la separation de la Belgique d'avec la " Hollande. " 6°. Que lea Cinq Puissances reconnaissent le droit, en vertu " duquel les autres Etats prendraient telles mesures qu'ils juge- " raient n^cessaires, pour faire respecter ou pour r^tablir leur " autorite legitime dans tous les pays k eux appartenant sur lesquela " la protestation mentionn^e plus haut tihve des pretentions, et qui " sont situ^s hers du Territoire Beige declare neutre. " 7°. Que Sa Majesty le Eoi des Pays-Bas ayant adhere, sans " restriction, par le Protocole du 19 Fevrier 1831, aux arrange- " mens relatifs a la separation de la Belgique d'avec la Hollande, " toute entreprise des Autorites Beiges sur le Territoire que le " Protocole du 20 Janvier a declare Hollandais, serait envisage " comme un renouvellement de la lutte a laquelle les Cinq Puis- " sances ont resolu de mettre un terme. " esteehazt, " Talleteajs'D, '' BaLOW, " LlEVEN WaSSENBERQ, " Palme RSTON, " Matuszewic." APPENDIX IV. Page 46. Chap. V. s. xxxi. Frauds upon, and Breaches of Foreign Municipal Law, not COGNIZABLE IN THE COURTS OF ENGLAND, OR OF THE UnITED States of North Ajjierica. No. 1. The principle referred to in the text, that a nation which pro- tects the forgers of the coin of another nation, commits an inter- national offence, ought, as Mr. Chitty reasonably remarks in his note upon the passage in Vattel, to be so extended as to deny effect to any fraud upon the Government or subjects of a foreign State. A different rule, however, certainly prevails both in England and in the United States of North America. As to England, the case usually referred to as being that in which a contrary principle was laid down, is Boucher v. Lawson, in which the opinion of Lord Hardwicke, then Chief Justice of the APPENDIX IV. 559 King's Bench, is thus recorded : — " I think the unlawfuhiess of " the trade makes no diiFerence, for it is not material to us what " the law of Portugal is, but what the law of England is ; and here " in England it is not only a lawful trade, but very much encou- " raged" (i). This judgment was delivered in the 9th year of George II. No. 2. In the 15th year "of George III., the following case was tried in the Court of King's Bench {k) : — HOLMAN et aV versus johnson, alias newland. " Assumpsit for goods sold and delivered : Plea non-assumpsit " and verdict for the plaintiff. Upon a rule to shew cause why a " new trial should not be granted, Lord Mansfield reported the case, " which was shortly this : The plaintiff who was a resident at, and " an inhabitant at Dunkirk, together with his partner, a native of " that place, sold and delivered a quantity of tea, for the price of " which the action was brought, to the order of the defendant, " knowing it was intended to be smuggled by him into England. " They had however no concern in the smuggling scheme itself, " but merely sold this tea to him, as they would have done to " any other person in the common and ordinary course of their " trade. " Mr. Mansfield, in support of the rule, insisted, that the con- " tract for the sale of this tea being founded upon an intention to " make an illicit use of it, which intention and purpose was with " the privity and knowledge of the plaintiff, he was not entitled to " the assistance of the laws of this country to recover the value of " it. He cited Huberus, vol. ii. pp. 538, 539, and Kobinson v. Bland, " to shew that the contract must be judged of by the laws of this " country, and consequently that an action for the price of the tea " could not be supported here. " Mr. Dunning, Mr. Davenport, and Mr. BuUer, contra, for the " plaintiff, contended, that the contract being compleat by the de- " livery of the goods at Dunkirk, where the plaintiff might law- " fuUy sell, and the defendant lawfully buy, it could neither directly " nor indirectly be said to be done in violation of the laws of this " country ; consequently it was a good and valid contract, and the " plaintiff entitled to recover. It was of no moment or concern to " the plaintiff what the defendant meant to do with the tea, nor had " he any interest in the event. If he had, or if the contract had (4) Cases temp. Hardwicke, p. 198. (K) Coxoipers Reports, pp. 341-5. 5G0 APPENDIX IV " been that the plaintiff should deliver the tea in England, it would " have been a different question; but there viraa no such under - " taking on his part. They pressed the argument ab inconvenieiiti, '' and cited several cases : — MSS. at Ni. Pri. before Lord Mansfield, " sittings in London. — An action brought by the plaintiffs, who " were lace-merchants in Paris, for laces, (which wei'e contraband " in this country) sold and delivered to the defendant's order at " Calais. The question made was, whether the vendor of contra- " band goods at Paris was not bound to run the risk of their being " smuggled into this country. But Lord Mansfield held, that as " the contract on the part of the plaintiff Avas compleat by his de- " livering the laces at Calais, he was clearly entitled to recover, " and the jury found a verdict accordingly. — Faikney v. Eeynous " and liichardson. East. 7 Geo. 3. B. E. since reported in 4 Bur. " 2069. and 1 Black. 633. where one partner in a stock-jobbing con- " tract lent the other 1500Z. to pay his moiety of the differences on " the rescounter day ; and though this was pleaded to the bond, '' the Court upon demurrer overruled the plea, and held the " plaintiff was entitled to recover. Bruston v. Clifford, in Chan., " before Lord Camden, 4th December, 1767. Alsibrook v. Hall, " in C. B., where money paid for the defendant for a gaming debt " was held recoverable by the plaintiff. " Lord Mansfield. — ' There can be no doubt but that every action " tried here must be tried by the law of England ; but the law " of England says, that in a variety of instances, with regard to " contracts legally made abroad, the laws of the country where the " cause of action arose shall govern. — There are a great many " cases which every country says shall be determined by the laws " of foreign countries where they arise. But I do not see how the " principles on which that doctrine obtains are applicable to the " present case. For no country ever takes notice of the revenue " laws of another. " 'The objection, that a contract is immoral or illegal as between " plaintiff and defendant, sounds at all times very ill in the mouth " of the defendant. It is not for his sake, however, that the ob- " jection is ever allowed ; but it is founded in general principles of " policy, which the defendant has the advantage of, contrary to " the real justice, as between him and the plaintiff, by accident, if " I may so say. The principle of public policy is this : ex dolo " malo non oritur actio. No Court will lend its aid to a man who " founds his cause of action upon an immoral or an illegal act. If, " from the plaintiff's own stating or otherwise, the cause of action " appears to arise ex turpi causa, or the transgression of a positive " law of this country, tlien the Court says he has no right to " be assisted. It is upon that ground the Court goes ; not for the " sake of the defendant, but because they will not lend their aid " to such a plaintiff. So if the plaintiff and defendant were to APPENDIX IV. 561 " change sides, and the defendant was to bring his action against " the plaintiff, the latter would then have the advantage of it; " for where both are equally in fault, potior est conditio de- " fendentis. " ' The question therefore is, whether, in this case, the plaintiff's " demand is founded upon the ground of any immoral act or con- " tract, or upon the ground of his being guilty of anything which " is prohibited by a positive law of this country. — An immoral " contract it certainly is not ; for the revenue laws themselves, as " well as the offences against them, are all positivi juris. What, " then, is the contract of the plaintiff? It is this : being a resident " and inhabitant of Dunkirk, together with his partner, who was " born there, he sells a quantity of tea to the defendant, and de- " livers it at Dunkirk to the defendant's order, to be paid for in " ready money there, or by bills drawn personally upon him in " England. This is an action brought merely for goods sold and " delivered at Dunkirk. Where then, or in what respect, is the " plaintiff guilty of any crime? Is there any law of England trans- " gressed by a person making a compleat sale of a parcel of goods " at Dunkirk, and giving credit for them ? The contract is com- " pleat, and nothing is left to be done. The seller, indeed, knows " what the buyer is going to do with the goods, but has no con- " cern in the transaction itself. It is not a bargain to be paid in " case the vendee should succeed in landing the goods; but the " interest of the vendor is totally at an end, and his contract com- " pleat by the delivery of the goods at Dunkirk. " ' To what a dangerous extent would this go if it was to be held " a crime. If contraband cloaths are bought in France, and brought " home hither ; or if glass bought abroad, which ought to pay a " great duty, is run into England ; shall the French taylor or the " glass-manufacturer stand to the risk or loss attending their being " run into England? Clearly not. Debt follows the person, and " may be recovered in England, let the contract of debt be made " where it will ; and the law allows a fiction for the sake of ex- " pedifing the remedy. Therefore I am clearly of opinion, that " the vendors of these goods are not guilty of any offence, nor " have they transgressed against the provisions of any Act of Par- " liament. "'I am very glad the old books have been looked into. The " doctrine Huberus lays down is founded in good sense, and upon " general principles of justice. I entirely agree with him. He " puts the veiy case in question, thus: Tit. de conflictu legum, " vol. ii. p. 539. " In certo loco merces qusadam prohibitse sunt. " Si vendantur ibi, contractus est nullus. Verum, si merx eadem " alihi sit vendita, ubi non erat interdicta, emptor condemnabitur, " quia, contractus inde ai initio validus fuit." Translated, it " might be rendered thus : In England, tea, which has not paid VOL. II. O 562 APPENDIX IV. " duty, is prohibited ; and if sold there, the contract is null and " void. But if sold and delivered at a place where it is not prohi- " bited, as at Dunkirk, and an action is brought for the price of it " in England, the buyer shall be condemned to pay the price ; be- " cause the original contract was good and valid. — He goes on " thus : Verum si merces venditae in altera loco, ubi prohibitae " sunt essent tradendce, jam non fieret condemnatio, quia repugna- " ret hoc juri et commodo reipublicse quse merces prohibuit." " Apply this in the same manner. — But if the goods sold were to " be delivered in England, where they are prohibited, the contract " is void, and the buyer shall not be liable in an action for the " price, because it would be an inconvenience and prejudice to the " State if such an action could be maintained. " ' The gist of the whole turns upon this, — that the conclusive de- " livery was at Dunkirk. If the defendant had bespoke the tea at " Dunkirk to be sent to England at a certain price, and the plain- " tiff had undertaken to send it into England, or had had any con- " cern in the running it into England, he would have been an " offender against the laws of this country. But upon the facts of " the case, from the first to the last, he clearly has offended against " no law of England. Therefore let the rule for a new trial be " discharged.' " The three other judges concurred." No. 3. In the 4th year of George IV., the following case was decided in the Court of King's Bench (Z) : — JAMES V. CATHEEWOOD. (JunC 1823.) " Assumpsit for money lent. Plea, first, non-assumpsit, and '' second, the statute of Limitations. At the trial before Abbott, " C. J., at the Second Middlesex Sittings in Easter Term, it ap- " peared that the money in question was lent by plaintiff to defen- " dant in France, in the year 1814, where both parties then resided. " To prove the loan, receipts for the money, dated in the year " 1817, and signed by the defendant, but not stamped, were ten- " dered in evidence. The defendant's counsel objected to those " receipts as inadmissible, and offered to show, that by the law of " France, such receipts required a stamp ; but the learned judge " being of opinion that they were admissible here, as acknowledg- " ments of the debt, without any stamp, rejected that evidence, " and the plaintiff had a verdict. (l) 3 Dowling S,- Ryland's Reports, pp. 190-1. APPENDIX IV. 563 " Chitty now moved for a new trial, on the ground that the de- " fendant should have been allowed to produce evidence of the law " of France, to show that in that country such receipts were not legal " without a stamp, and contended, that as every contract must be " entered into in conformity with the lex loci, it was competent to " the defendant to show that this contract had not so been entered * " into. (Best, J. — ' Can we take notice of the revenue laws of " France ? ' Abbott, C. J. — ' That is the question. In the time of " Lord Hardwicke, it became a maxim, that the Courts of this " country will not take notice of the revenue laws of a foreign " State. There is no reciprocity between nations in this respect. " Foreign States do not take any notice of our stamp laws, and why " should we be so courteous to them, when they do not give eiFect " to ours ? ') There certainly was a dictum of Lord Hardwicke, " that an English Court cannot take notice of the revenue laws of " a foreign country, but here was no solemn decision upon that " point, which seems rather to have been taken for granted than " grounded on any authority. It is admitted by foreign writers, " and others, that though an instrument made in a foreign country " may not be admissible in evidence, yet it does not make it void ; " but that if any use is to be made of it, evidence must be adduced " to show that it has been framed according to the lex loci. Upon " this principle it is a matter worthy of further consideration, whe- " ther it was not competent to the defendant to show that, by the " law of France, these receipts would not be binding in that country " unless stamped. " Abbott, C. J. — ' This point is too plain for argument. It has " been settled, or at least considered as settled, ever since the time " of Lord Hardwicke, that in a British Court we cannot take notice " of the revenue laws of a foreign State. It would be productive of " prodigious inconvenience, if in every case in which an instrument " was executed in a foreign country, we were to receive in evidence " what the law of that country was, in order to ascertain whether " the instrument was or was not valid. Nothing must be taken by " the motion.' " Holroyd, J. {ni), and Best, J. concurred. " Rule refused." No. 4. It is difficult to strive against the authority of Hardwicke, Mans- field, and Tenterden, but the international jurist must lament that a more liberal view of international obligations, by way of comity at least, has not been taken by these great luminaries of the Eng- (m) Bayley, J., was absent, o o 2 564 APPENDIX IV. lish law. And it is right to add that the authority of Stowell sup- ports a case of gross fraud upon an enemy which it is difficult to reconcile with the laxest views of belligerent morality. The case is as follows : — Case of the London (ra). " This was also the case of a British ship and cargo, captured by* " an American privateer, the captain of which offered to restore " the ship and cargo to the master, on condition of his drawing a " bill for 1,000^., payable in London. The master accepted the " restitution on these terms, and accordingly drew a bill to that " amount ; but took care to send advices to London in time to " prevent payment of it. A demand was now made by him for " salvage on the cargo, as recaptured from the enemy. The value " of the cargo was stated to be from 1,500Z. to 2,000/. " The Court gave him one-tenth, and his expenses." No. 5. To these cases it should be added that it was actually held, in the- case of Smith v. Marconnay (o), " that the maker of paper in " England, knowingly made by him for the purpose of forging " assignats upon the same, to be exported to France in order to " caanait frauds there on other persons, might recover damages for " not accepting such paper pursuant to contract." The same doctrine has been held by the American Courts in various cases. But Dr. Story, in his Commentaries on the Conflict of Laws, speaking as a jurist, reprobates, with Pothier, the principle of these decisions. Dr. Story says — " It might be different, accord- " ing to the received, although it should seem upon principle inde- " fensible, doctrine of judicial tribunals, if the contract were made " in some other country, or in the foreign country to which the " parties belong ; for (as has been seen) it has been long laid down " as a settled principle, that no nation is bound to protect, or to " regard the revenue laws of another country ; and, therefore, a " contract made in one country by subjects or residents there to evade " the revenue laws of another country, is not deemed illegal in the " country of its origin. Against this principle Pothier (p) has " argued strongly, as being inconsistent with good faith and the " moral duties of nations. Valin (g), however, supports it ; and (ra) 2 Dodson's Admiralty Meports, 74. (o) 2 Peake's Reports, 81. (p) Pothier, Assur. n. 58. (q) 2 Valin. Comm. art. 49. p. 127. APPENDIX IV. 565 " Emdrigon (r) defends it, upon the unsatisfactory ground, that " smuggling is a vice common to all nations. An enlightened policy, " founded upon national justice as well as national interest, would " seem to favour the opinion of Pothier in all cases where positive " legislation has not adopted the principle as a retaliation upon the " narrow and exclusive revenue system of another nation. The " contrary doctrine seems, however, firmly established in the actual " practice of modern nations, without any such discrimination, " too firmly, perhaps to be shaken, except by some legislative Act " abolishing it " (s). The passage in Pothier to which Dr. Story refers, is as follows : — " Lorsque I'arrSt a ^te fait pour cause de contrebande, et que les " marchandises assurees s'etant trouvees de contrebande ont ^t6 " confisquees, cette parte doit-elle tomber sur les assureurs ? Par " exemple, un n^gociant fran9ois a fait charger en Bspagne clan- " destinement des marchandises de soierie, centre les loix d'Bspagne, " qui en d^fendent I'exportation : le vaisseau a et^ arrete par les " ofiiciers du Eoi d'Espagne, et les marchandises confisquees, comme " ^tant chargees en contrebande. Les assureurs sont-ils tenus de " cette perte ? Vaslin tient I'aflirmative, pourvu que les assureurs " aient eu connoissance que les marchandises qu'on a fait assurer " ^toient de contrebande : car s'ils I'avoient ignore, il n'est pas " douteux, en ce cas, qu'ils n'en seroient pas tenus : ils ne pourroient " pas etre censes s'^tre soumis au risque de la confiscation pour " cause de contrebande, n'ayant pas de connoissance que les mar- " chandises fussent de contrebande " (i). It appears that the judicial tribunals in Prussia do, to their great credit be it said, hold that a contract relating to the smuggling into a foreign country of goods prohibited by the revenue laws of that country, is illegal and invalid, as being contra bonos mores {guten Sitten zuwider). — Heffters, Das Europdische Volkerrecht der Oegen- wart, § 31, n. 21. (r) Em^gon, c. 8. s. 5. pp. 212, 215. (s) Stmy, Cmflict of Laws, c. viii. s. 267. p. 333. {t) Pothier, (Euvrea du Traite de Contrat d' Assurance, t. iii. c. i. sect. 2, art. 2. s. 2. p. 58. 666 APPENDIX V. APPENDIX V. Page 89, Chap. VIII. TREATIES INTERPRETATION OF. No. 1. Interpretatio § 4. Pads Monasteriensis, 30 Januar. 1648 (a). " LoNGHM esset exponere, quae Pontificiorutn fuerit conditio in " Belgio Fcederato ab initio Reipublicae ad hfec nsqne tempora. " Ne quidem animus est commemorare, quas in Imperio Ordinum " Generalium, et qtise in singulis Provinciis contra solos Bcclesias- " ticos, qui Pontifici Romano adsurgnnt, constituta et decreta sunt. " In rem nostram sufficit scire, ut Laicis Pontificiis in Belgio " Fcederato libera morari semper licuit, ita Clericis, etiam ante " pacem Monasteriensem, non licuisse. Jesuitis quidem, qxii in " Belgio Fcederato invenirentur, 600 florenorum mulctam Ordines " Generates constituerunt in Edictis 26 Febr. 1622, 8 Sept. 1629, " et 30 Aug. 1641, ceteris omnibus Ecclesiasticis Belgio Fcederato " simpticiter interdicto, exceptis duntaxat iis, qui ante annum 1622 " hie habitassent, dummodo intra dies octo nomina sua ad Magis- " tratum loci, ubi degunt, deferrent, et secundum leges Ordinum " viverent. " Recte se habebant ea Edicta tempore belli Hispanici, quo facta " sunt, sed qurero, an recte se habeat Edictum, quod Ordines " Generalea post pacem Monasteriensem promulgarunt 14 Apr. " 1649, quo priora ilia Edicta, quorum sententiam retuli, repetita " et servari jussa sunt? vel potius qutero, an non sseviora ilia Edicta " restringi et temperari debeant quod ad Ecclesiasticos, qui ex " Imperio Regis Hispaniarum, Belgio forte tunc Hispanico, nunc " Austriaco, hie adsunt ? Qusestiouem facit § 4, Pacis Monaste- " riensis 30 Jan. 1 648, quo inter Regem Hispaniarum et Ordines " Generales convenit, ut olim quoque convenerat § 4, Induciarum " 9 Apr. 1609, alterius subditis et incoHs, absque ullo personarum " discrimine, in alterius Imperium recte licere advenire, ibi manere " et agere, et commercia sua exercere. Verba Belgice sic habent : " de Ondersaten en inwoonderen van de Landschappen van de " voorschr. Heeren Koning en Staten zullen ooh mogen " Jcomen en hlyven in de Landschappen de een van de andere, en " daar doen hare trafique en commercie in alle versekeriheid, zoo ter " Zee, andere Wateren, als te Lande. " Sane plerique Belga3 Poederati videntur credidisse, salva ea "pace, duriora ilia Edicta explicari non posse, atque ita Eccle- " siastiois Pontificiis omnino prodesse d. § 4. Gelri quidem, et " HoUandi, et Frisii, et Groningani in extraordinariis Ordinum " Generalium Comitiis, proximo post illam pacem habitis anno (a) Bynkershoek, Qttaistiunes Juris Publici, lib. ii. cap. 20. APPENDIX V. 567 '' 1650 et 1651 proposuerunt, exercerentur Ordinum Edicta contra " effrenem Ecclesiastioorum in has Regiones veniendi licentiam, sed " hoc nominatim addito, quatenus salva pace fieri posset, cujus " nomine non aliani, quam illam Monasteriensem, intelligo, et ita " quoque, addita hac ipsa clausula, Ordines Generales decreverunt " 27 Jan. 1651. Quia autem ilia clausula parum certitudinis " habebat, idcirco in iisdem Comitiis mense Apr. 1651, propositum " est, habita ratione eorum, quse tempore induciarura acta gesta " erant, certa ei rei forma^ daretur ; sed traditum invenio, earn non " esse constitutam, verum ad ordinarium Ordinum Generalium " Collegium rejectam ejus rei curam, atque adeo tacite substitum " esse in illo Decreto 27 Jan. 1651, nihil enim quicquam postea " definitum est. " Nondum igitur extricata res erat. Zelandi, ut extricarent, 22 " Jan. 1651. in iisdem extraordinariis Comitiis alia rem adgressi " sunt via. Existimarunt illi, non obstante eo § 4, omnes Eccle- " siasticos, qui Pontificia Sacra sequuntur, expelli, nee uUos alios " admitti posse, quod nempe illi Ecclesiastici, utut ex Imperio " Hispanico advenientes, non essent Regis Hispaniarum subditi, '■ sed Papse Romani. Addebant, id ipsum Regis Legates eo tem- " pore, quo pax ilia pangebatur, fuisse testates, quin etiam Ordinea " in deliberationibus, quas pacem prscesserunt, decrevisse, nihilo- " minus Edicta, contra Ecclesiasticos Pontificios facta, effectum esse " habitura. Quas rationes Synodorum Legati per libellum, iisdem " Comitiis porrectum, deinde suas fecerunt. At prima ratio apud " me parum valet, Ecclesiastici utique etiam sunt subditi, et pro " subditis habentur in omnibus Imperils Pontificiis. Si tamen, qua " sunt Ecclesiastici, subditos Regis esse neges propter jurisdictionem " Ecclesiasticam, non negabis certe, qui ex Imperio Hispanico ad " nos advenere. Regis Hispaniarum esse incolas, inwoonderen, pax " autem loquitur de subditis et incolis, ondersaten en inwoonderen. " Legates Regis aKud fuisse testates, et Ordines in prseviis delibe- " rationibus mode decrevisse, etiam post pacem factam tuenda esse " sffiviora ilia Edicta, non comperi, etsi diligenter quffisiverim, neque " adeo de duabus illis rationibus, quK facti sunt, quicquam habeo, " quod dicam, nee etiam de his quicquam dixerunt Gelri, Hollandi, " Erisii et Groningani, nee postea etiam Transisulani, quamvis " in Pontificios adhuc magis acerbi. Et tamen illse rationes, in " causa adeo recenti, omnes illos latere non potuerunt. Hoc unum " comperi, Ordines, priusquam Legates suas ad pacem pangendam " mitterent, simpliciter decrevisse, se tuituros puriera Sacra, " publico recepta, sed aliud est Sacra ilia tueri, aliud duriora ilia " Edicta exsequi. Neque etiam animadverto, quid prodesset, si " Legati Regis ante pacem pactam vel tale quid garrivissent, vel " ipsi Ordines decrevissent. Quid in ipsa pace convenerit, unice " quaerendum, et ex ejus legibus, si quid inter Principcs incidat, " definiendum est. 568 APPENDIX V. " Fuit, cum putarem, d. § 4, duntaxat esse intelligendum de " ejusinodi subditia et incolis, qui comniercia exercerent, ajunt " enim verba finalia, quae exhibui, en daar doen hare trqfique en " commercie. Sed bona fides illam interpretation em respuit, nam, " quod de meroaturaadditur, non aliam causam habet, qiiam quod " eo plerumque fine alterius subditi alterius Principis Imperiura " firequentent, non quod interdioatur alterius subditis in alterius " Imperium advenire, et ibi forte otiari, philosophari, et procul " negotiis securum agere sevum. Hac igitur sententia nunc non " utor, maxime quum alia, et, ni fallor, verior succurrat. Nempe " Clericatus Pontificius, postquam emendatior Eeligio pnblice re- " cepta fiiit, in hisce Regionibus criminis speciem quandam ha- " bebat, neque enim cuiquam bic impune Clerico ease licebat, qui- " busdam Clericis posita mulcta, et omnibus, ut dixi, advenis Belgio " Fcederato interdicto, quin et indigenis sub certo mode. Sic " leges moresque ferebant, etiam ante pacem Monasteriensem ; " criminosis autem, ex mente d. § 4, quamvis in alterius Imperio " habitarent, in alterius Imperium, ubi criminosi sunt, advenire " nequaquam licet. Pactus est d. § 4, belli finiendi ergo inter " Kegem et Ordines, ut sic, quemadmodum ibi palam expressum " est, inter utriusque subditos cesset, quicqrdd antea hostile fiiit, " sed non ut cessaret persequutio criminum, quas, etiam extra " causam belli, leges publicae vindicabant. Quare d. § 4, prodesse " nequit Ecclesiasticis, quamquam Hispaniarum Eegia subditis, " quia et ante illam pacem proscribebantur, et proscribebantur non " tanquam Regis Hispaniarum subditi, sed tanquam Ecclesiastici, " omnium enim Principiom Ecclesiasticos Pontifioios, etiam eorum, " quibuscum pax erat, eadem lex arcebat. Unde manifestum est, " antequam Ecclesiastici, ut Regis Hispaniarum subditi, etiam hie " admitterentur, nova opus fuisse pactione, ex qua, quos citra belli " causam lex repellebat, hie adesse liceret, cujusmodi pactio nun- " quam intercessit. An tu putas, qui non propter bellum, sed " propter crimen aliqucd, ex Belgio Foederato relegati deportative " in Ditionem Regis Hispaniarum concesserant, et ibi, qua subditi " vel incolse, aliquamdiu egerant, an, inquam, tu putas, iis, si " animum revertendi haberent, per d. § 4, in Belgio Foederato esse " licere ? ego non puto. Exemplo res fiet clarior. Omnes Judaeos " impia pietate, et in manifestam Imperii sui pemiciem Hispani " proscripserunt, et in aliis etiam Imperils inclementius habentur, " sed aliter HoUandi, mercator Populus, sentiunt, apud hos enim " Judaei, Gens ad Eempublicam commerciis fi:equentandam utilis- " sima, adeo benigne recepti simf, ut utantur iisdem Legibus et " Privileges, quibus iituntur ceteri HoUandise subditi et incolse. " Quasro igitur, an Judfeus ex Hollandia, Judasorum nutricula, " post d. § 4, in Hispaniam commeare, ibiqtie libere morari possit ? " Si me audias, non poterit, nam, qua Judseus, diu ante d. § 4, " proscriptus est, nee proscriptis favet ille §. 4. Al'PEMDIX V. 569 " Quamvis autem ilia, quam dedi, interpretatio d. § i, videatur verissima, dubito tamen, an Ordines Hollandise ea uti poasint. Quum enim Judseos quosdam Hollandos male accepissent Hispani, et Judaei ea de re essent quest! apud Ordines HoUandiEe, hi 12 Jul. 1667, decreverunt, Judjeos illos, male acceptos, habendos esse pro subditis et incolis Fcsderati Belgii, ideoque et gaudere oportere eodem jure et privilegiis, quae ex pace, cum Hispanis pacta, aut ex Pacto marine, vel ex quibusque aliis Conventionibus, cum aliis Eegibus, Rebuspublicis, Principibus, Ordinibus, Urbibusve factis, hujus Eeipublica subditis et incolis competunt, addito insuper mandate, sui in Ordinum Generalium Collegium Dele- gati et in hac, et in aliis omnibus causis, curarent Juda;i secundum id Decretum omnino defenderentur. Si credas, illud Decretum duntaxat pertinere ad bona, non etiam ad personas Judseorum, falleris, nam quod ad bona nullus ab Hispanis metus ; ecce enim septennio ante id Decretum, anno nempe 1650, Hispaniarum Eegis Legatus apud Ordines Generales jam erat testatus, Judseis, qui in Belgio Foederato essent, in Hispania liceret res suas agere per homines suos, et eorum bona non aliter haberentur, quam reliquorum subditorum Foederati Belgii, mode ne ipsi in Hispa- niam venirent. " Igitur ainplius deliberandum est de justitia ejus Decreti 12 Jul. 1657, sed dum deliberamus, tenendum est, reliquos Ordines Foederati Belgii nunquam simile quid decrevisse, per eos igitur recte subsistere illam interpretationem d. § 4, et, hac admissa, satis intelligimus, duriora ilia Edicta contra immoderatum Ec- clesiasticorum Pontificiorum multitudinem, in has Eegiones irru- entem, repeti potuisse illo 14 Apr. 1649, et postea etiam optimo jure sjepius fuisse repetita. Novissimum Ordinum HoUandiae Edictum ea de re promulgatum est 21. Sept. 1730. Sed hoc et alia ejusdem argumenti praetereo, contentus probasse, nulla ra- tione d. § 4. plerosque Ordines Foederati Belgii habuisse sollicitos, atque si nempe obstaret interdictioni Clericorum, hue advenientium ex Imperio Hispanico." No. 2. Letter of Sir Leoline Jenkins to the Lords of the Privy Council (b). " To the Eight Honourable the Lords of His Majesty's Most " Honourable Privy CouncU, appointed a Committee for His " Majesty's Plantations. « December 1, 1668. " My Lord?, " The affair of St. Christopher's (whereof I am in obedience to your " Lordships now to give an account) seems to resolve itself into " these following inquiries : — (b) Life of Jenkins, vol. ii. p. 735. 570 APPENKIX V. " First, whether the French instruments of Cession, and the " Most Christian King's despatches and orders for the restoring of " His Majesty's part of that island, be valid and sufficient? " I cannot say, my Lords, but that the instrument of Cession is " full enough, and agreeable to the best legal forms now current in " France and Italy. Of the despatches there is this account to be " given. " In the first, dated August 28, 1667, the order for Eestitution " was fall and clear, without any proviso or condition, yet it ob- " tained not the effect expected. The pretence was that the Com- " mander-in-Chief, M. de la Barre, was out of the way when my " Lord Willoughby made his demand : but it seems that was not " all ; for when Colonel Lambert made the same demand about " two months after, at Midsummer last, M. de la Barre made the " very same difficulties and demands that the French Ambassador " now makes in his last Memorial. " In the second despatch, dated the 17th of July last, the most " Christian King does (upon His Majesty's Letter) bewail the dis- " appointment to my Lord Willoughby in very passionate language, " both as it reflected upon the honour of a Prince, tender of nothing " so much as of his word ; and as it appeared to be a dissatisfaction " to our most gracious Sovereign ; and (to make amends) the " French Governor is commanded, whether M. de la Barre be in " the way or not, to deliver up his part to His Majesty, all delays " and pretences whatsoever laid aside, under pain of disobedience " and rebelhon. This despatch likewise (in all probability) obtains " no effect. For M. de Lyonne advises my Lord St. Albari's that " it was desired in the French Court that this despatch should not " be sent away hence : M. de la Barre having been written to, to " govern himself as M. Colbert should direct from hence, and not " according to these orders. " The last despatch, dated the 31st of October last, varies from " the tenom: of both the former ; for it supposes the word habitations " to be within the intendment of the Vlllth Article ; and conse- " quently, that the French bought the English houses and lands, " as well as their stocks and moveables. And then it takes for " granted, that M. Colbert has satisfied His Majesty that the English " are not to be restored to their plantations, till they do reimburse " the French of their demands. So that this despatch being " compared with the Ambassador's Memorial, promises no great " effect. "For the Ambassador desires: 1. That the French, who shall " become subjects to this Crown, may be treated in all respects " as English. 2. That they be not in th« least disturbed in their " possessions, till we pay them back their purchase-money. 3. " That we give them content (that is the word, which cannot imply " less than good security) in the demands they make for improve- APPENDIX V. 571 " nients. 4. That His Majesty would please to prefix a day, within " which the English shall be bound to reimburse the French ; and " in default of doing so, the English to be declared for ever inca- " pable of being restored to their own : This implies, that very " much is expected to be done on our part, before the French do " anything on theirs ; as if the Vlllth Article were a necessary " condition, antecedent to the performance of the Vllth, which is " not only distant from the sense of the article, but contrary to the " tenour of this and all other Treaties. And though the King's " letter mentions no more but the reimbursement of the purchase- " money, yet it is with a Men entendre, that this must be done " effectually, before the English be restored to their possessions. " Another inquiry is, whether the word Bona comprehends lands " and houses, as well as stock, and those moveables which we call " a personal estate ? " It cannot be denied, my Lords, but that the word Bona, in " the Roman Civil Law, as also in the present laws and customs of " the French, comprehends both the one and the other in many cases; " though in this case it does not, as may be evinced by several " arguments. " First, In this Treaty with the Dutch and the Dane at Breda, " the clauses and provisos concerning lands and immoveables on " the one side, and concerning goods and moveables on the other, " are still distinct and separate, as things opposite in their notion. " For instance, in the Treaty with the Dutch, the right of all lands, " towns, forts, places, and colonies, i.s, in the Ilird and Vlth Articles " settled one way ; and in the IVth and Vllth, that of Bona " cuncta mobilia, another way : Just so it is with Denmark in the " Vth ; their moveables, Quicquid Bonorum, fall under one provi- " sion, and in the Vlth, their territories under another : 'Tis so in " the elaborate Treaty of the Pyrenees, 1659. For moveables, des " Debts, Mercliantdizes, Effects, and Meubles, it has distinct Articles, " the XXlInd and XXlXth, but nothing moveable mingles in " those other Articles that do settle lands, territories, and real estates. " So it is in the Treaty of Chasteau Cambresis, and several others. " The Territory, therefore, and Sovereignty of St. Christopher's, " being the subject-matter of the Vllth Article of the Treaty with " France, the word Bona, in the following Article (in this Treaty " as well as in the others) must mean moveables and nothing else ; " for the Forma Communis must needs, in construction of law, " be here intended and observed, since the variation from it is not " expressed. And it cannot be well imagined, that the word Bona " should signify one thing to the Dutch and Dane, and another " thing to the French, where both the subject-matter of the debate, " and the per.sons treated with by the three parties, were the very " same. From these concurrences, the law raises validissimam con- '' jecturam, and a fuU light wherewithal to clear the ambiguity. 572 APPENDIX V. " Secondly, The case of the English is extremely favourable; 'tis " to be restored to their own by a sacred compact ; and the word " Eestitution is so favourable, that when a heinous malefactor hath " it in his pardon from his Prince, it does not only take off his " punishment, but also restore him to his good name, honours, and " estate : much more then shall those that are restored ex debito " justitifp., recover everything that the Treaty does not in very clear " and express terms deny them. " Thirdly, The civilians and feudists do hold, that lands held by " such tenures and services as the English held theirs in this island, " are not comprehended under the word Bona; and in this very " case, when they say, (and 'tis a very common saying) Bona in hello " capta cedunt occupanti, they must mean moveables only ; the " lands and houses going another way, that is, to the conqueror. " Fourthly, By the Vlth Article of War, upon the surrender to " the French, the English had power to dispose of their immove- " ables, and to carry away their moveables, excepting negroes and " cattle, 'tis clear they could dispose of no more than what the " Treaty gave them leave to do, all the rest being devolved to the " French Jure Belli; therefore, since they had not power granted " them to dispose of their Fonds, Maisons, and heritages, their " houses and lands did not pass. The word Immeubles, when " opposed to Meuhles in the French laws, signifies no more than " what we call chattels real, parcels of the freehold, and choses in " action, here in England. " Biit if it be urged, that the English have made over, not only " their moveables, but their lands and houses, to the French by " firm conveyances, it is humbly conceived, that whatever those " contracts were, they are not to be measured and expounded by " the Treaty. Besides, these conveyances were some of them void, " as being forced by threats and terrors ; some of them voidable, " as being under half the real value, and some of them utterly " feigned and false. An instance whereof is given in Captain Free- *' man, who was before your Lordships the other day. He passed " away his estate to M. de Chambers, Director of the West India " Company, for 40,000 sugars, that is, about 400Z. sterling : his " estate was worth 1000?. a year, and 'tis set down in the contract " that he has received all these sugars ; yet he utterly denies the " receiving of one penny value ; nay, that he was forced to pay " 20,000 sugars for a boat to this purchaser, to carry himself and " his family. " A third question is, whether the French are bound to repair " His Majesty's three forts, that they have demolished, since the " publishing of the peace 7 " There is no express provision, my Lords, in the Vllth Article, " about rendering the forts to His Majesty. But in case the French " (with whom the English are to be taken pari passu) had been APPENDIX V. 573 " beaten out of the island, the rule given to the English was, NiM- " lominus in eum Statmn restituantur Galli, in quo initio anni " 1665 erant. And the Dutch stipulating to surrender forts among " other things, in case they should take them after the 10th of May, " do promise that bond fide in eodem plane statu confestim resti- " tuentur quo turn temporis reperientur, quandocunque de instau- " ratd Pace in iisdem Locis constahit. And when forts are to be " rendered, they must not be demolished places ; for in interpreting " of Treaties, the rule is verla artis (as a fort is) secundum artem " intelligenda sunt. " A fourth inquiry is, concerning the improvements and the " costs, which the French are said to be at upon the plantations. " What the Ambassador's Memorial hath, of all laws and all " nations allowing for necessary expenses and improvements, is " under favour to be imderstood, when the possessor is in bond " fide\ but if he be malm fidei possessor, an usurper solemnly " denounced against, yet continuing his usurpation by force of " arms, he shall be so far from recovering his layings out, that he " shall account for the profits he hath received to a farthing ; but " putting the case, that the French had been all this while in bonA " fide, as they were till my Lord Willoughby summoned them ; " yet when their demands are not liquid, the law allows them not " to detain the thing improved ; they must accept of security, to " be reimbursed of what shall appear to be justly due. This was " offered the French by Colonel Lambert, when he made his de- " mand in June last, but it was not accepted. "Besides, in purchases that are subject to Restitution, by that " which the French call Relraict Lignager, the buyer is expressly " forbidden in France to lay out any more or other charges in " building or repairing than are purely and absolutely necessary, " within the year and the day allowed to the next of kin to come in. " The reason is, that the purchaser may not, by expenses unneces- " sarily laid out, render the recovery of the thing more difficult to " the family. The restitution of the English in this case is no less " favourable : Therefore, whatever the French have laid out since " the knowledge of the Treaty, upon pretence of improvements, " they have laid out in their own wrong, and by the equity of law " are precluded, and have no colour to demand any account, satis- " faction, or reimbursement from the English. " The extravagant demand, my Lords, of almost 7,000Z. sterling, " for food and necessaries to the English prisoners, and of 800Z. for " chirurgeons about them, needs not, as I conceive, any answer, " till it be known what reparations the English are like to have for " the waste, the spoil, the demolition acted upon their plantations " since the peace. " So that, my Lords, upon the whole matter, the true and honest " meaning of the Treaty being, that the Most Christian King, on 574: APPENDIX V. " his part, do forthwith order his subjects to quit all the planta- " tions they are possessed of, and to leave the English part entirely " to the English ; and that His Majesty, on the other side, do not " suffer the English to lay claim to their own cattle, slaves, or other " goods, unless they do first lay down the money or value, for which " they formerly sold them ; but that the French be at liberty to " carry them away, or otherwise dispose of them as their own : If " the French have made any improvements before notice of the " peace, they ought to be reimbursed ; if they have done us any " damages since, they ought to repair them. This I hope will be " done, and nothing less than this can be done, if the French do, " as the Most Christian King in his two first despatches directs, " proceed sincerement et en bon foy. But as to the particular " demands of disbursements for meliorations, and for prisoners on " their side, and the demands of reparation for waste, spoil, and utter " demolition on our side, they must, as I humbly conceive, be left " to Commissioners to be adjiisted upon the place. AU which I " do most humbly submit to your Lordships' high wisdom." No. 3. In the Exchequer Chamber. MARRYAT V. WILSON IN EEKOR (c). " A WRIT of error having been brought in this Court on the judg- " ment given in the Court of King's Bench between these parties, " {vid. 8 T. E. 31.) the case was argued early in this term by Sous " for the plaintiff in error, and Gibbs for the defendant ; the general " line of argument, however, being the same as that in the King's " Bench, and much commented on in the judgment of the Court, " it was thought unnecessary to do more than subjoin in the form " of notes to the following judgment whatever appeared at all new " or material. " The Court took time to consider of their opinion, which was " this day delivered by, " Eyre, Ch. J. — ' The substance of this record having been very " recently stated to the Court, and the record at large being to be " found in the Term Reports, I shall content myself with referring " to it, stating so much of it only as may be necessary to introduce " the questions which have arisen upon it. This is an action upon " policies of insurance set forth in the first, third, and fifth counts '' of the declaration. That in the first count being a valued policy " on one moiety of the ship Argonaut, Collet master, at and irom (r) 1 Bosanqtiet 8r Puller's Reports. 430-446. APPENDIX V. 575 " Bourdeaux to Madeira, and the East Indies, and back to America, " with liberty to touch, stay, and trade to all ports and places what- " soever or wheresoever on the outward or homeward-bound voy- " age ; and this policy is stated and found to have been effected by " the plaintiff for the use of John Collet. The policy in the third " count being a valued policy on goods, neutral property on board " the same ship, on a voyage at and from Bourdeaux to the East " Indies, with liberty to touch, call, and trade at all ports and places " or islands whatsoever and wheresoever, as well at the Cape as on " this or the other side of the Cape of Good Hope, until her arrival " at her port of discharge at Bengal ; and this policy is also stated " and found to have been effected for the use of the said John " Collet. The policy in the fifth count being on goods warranted " American property laden on board the same ship for a voyage at " and from Madeira to her last port of discharge in India, with " liberty to touch, stay, and trade at all ports, places, and islands " whatsoever and wheresoever, as well at, as on this and on the " other side of the Cape of Good Hope ; and this policy is stated " and found to have been effected for the use of the said John " CoUet and one Anthony Butler. " ' The defendant imderwrote all these policies, and a loss has " been sustained both of ship and cargo which is admitted to be " within the terms of the policy ; but it has been insisted upon the " part of the defendant that the voyages described in these policies " are illegal voyages, and as such cannot be made the subject of " contracts of this nature, and therefore that the defendant is not " bound by these contracts to make good his proportion of the loss. " ' The facts of the case upon which this charge of illegality is " founded, as may be collected from the special verdict in this " case, are these : John Collet and Anthony Butler, on whose ac- " count these policies were respectively effected, appear to have " been natural-bom subjects of His Majesty, but to have been resi- " dent and domiciled within the United States of America, the latter " before the declaration of the independence of the United States, " the former at a period subsequent to the ratification of such " independence. On the 12th of June, 1795, they became the " owners of this vessel in moieties; on the 25th of July, 1795, " Collet sailed in her as master, having a cargo of corn and flour " on board, from Philadelphia for France, with a view of proceed- " ing from thence with the ship, after the disposal of her cargo " there, to Madeira and the East Indies, and from thence back to " the United States. On the 1st of May, 1796, Collet arrived with " this ship at Brest, and there sold his flour; he afterwards pro- " ceeded to Bourdeaux, where he sold the remainder of his cargo, " and he there shipped on his own account the goods mentioned in " the second of these policies. While the ship remained at Bour* " deaux. Collet came to London, and having procured a credit with 576 APPENDIX V. the plaintiff in this cause, he, the plaintiff, purchased here upon his own credit by commission goods and merchandise of British growth and of British manufacture on account of Collet and Butler, and these are the goods which are the subject of the third of these policies. " ' The plaintiff by the direction of Collet, and during his stay in London, sliipped these goods in the port of London, on the joint account and risk of Collet and Butler on board three American ships, in which they were earned from London to Madeira for the purpose of being there re-shipped and put on board the Argonaut, and of being carried in that ship, together with the goods shipped on board her at Bourdeaux from Madeira, to the British territories in the East Indies, and of being imported into those territories, and traded, trafficked, and adventured in there ; and it appears that at the time of this loss, CoUet and Butler re- mained debtors to the plaintiff for the amount of these goods. On the 1st of May, 1796, the Argonaut sailed from Bourdeaux with the goods there taken on board her for Madeira, in order there to meet, receive, and take on board the goods shipped from London : she arrived at Madeira and took those goods on board there, and afterwards sailed from Madeira in the prosecution of her voyage to the East Indies, in the course of which voyage she was seized by the commander of a squadron of the King's ships on suspicion of being an illicit trader, and this has been consi- dered throughout the cause on all sides as a total lo^s of the ship and cargo. " ' It seems to have been admitted on all sides in this cause, that this voyage and the trade and traffic intended to have been car- ried on by the Argonaut with the British territories in the East Indies, is to be considered as illegal and the ship an illicit trader, unless the voyage and the intended trading were legalised by the Treaty of Commerce which was entered into between Great Britain and the United States of America on the 19th of Noveniber, 1794, which was afterwards ratified by the United States on the 14th of August, 1795, and by His Majesty on the 28th of October in that year, and retrospectively confirmed by Parliament in the 37 Geo. in. " ' By the 1 1th article of that Treaty it is agreed that there shall be a reciprocal and entirely perfect liberty of navigation and commerce between their respective people in the manner, under the limitations, and on the conditions specified in the Treaty. " ' By the 13th article His Majesty consents that the vessels be- longing to the citizens of the United States of America shall be admitted and hospitably received in all the seaports and harbours of the British territories in the East Indies, and that the citizens of the said United States may freely carri/ on a trade betiveen the said territories and the said United Stale?, in all articles of APPENDIX V. 577 " which the importation or exportation respectively to or from the " said territories shall not be entirely prohibited : provided only " that it shall not be lawfal for them in any time of vrar between " the British Government and any other Power or State whatever, " to export from the said territories, without the special permission " of the British Government there, any military stores, or naval " stores, or rice. The citizens of the United States are to pay no " higher tonnage duty than British vessels pay in the ports of the " United States, and they are to pay the same import and export " duties as are paid by British vessels. It is expressly agreed that " the vessels of the United States shall not carry any of the articles " exported by them from the said British territories to any port or " place, except to some port or place in America, where the same " shall be unladen, and such regulations shall be adopted by both " parties as shall be found necessary to enforce the due and faith- " fill observance of this stipulation. This article is not to extend " to allow the vessels of the United States to carry on any part of '' the coasting trade of the British territories : and for explanation " it is added, that vessels going with their original cargoes or part " thereof, from one port of discharge to another, are not to be con- " sidered as carrying on the coasting trade. This article contains " some other provisions by which Americans are to govern them- " selves in their intercourse with the British territories, but nothing " arises upon that part of the article material to the present subject. " ' On the part of Mr. Marryat, the defendant in the action, it has " been insisted by Mr. Rous, who . entered very fairly into the real " merits of the case, that according to the true construction of this " Treaty, viewing it in all its parts, and attending both to the letter " and the spirit of it, the trade to be carried on between the British " territories in the East Indies and the United States is a direct " and immediate trade from the United States to the British terri- " tories, as well as from the British territories to the United States, " which unquestionably must be direct and immediate, it being " expressly agreed that the vessels of the United States shall not " carry any of the articles exported by them from the British ter- " ritories in the East Indies, to any port or place, except to some " port or place in America, where the same shall be unladen ; and " consequently that the voyages insured from Bourdeaux and from " Madeira, not being protected by the moiety, we:fe ex concessis illegal. " ' Mr. Eous's verbal criticism upon the word between was in- " genious and well supported : but in truth there is hardly a word " in the English language less precise in its meaning or more in- " definite in its application than the word ' between.' According " to the context it is used to express the strictest local sense of " to and from, or the most remote relation which any one thing " can have or bear to another. For instance, when we say that the " inlet from the Western Ocean to the Mediterranean is between VOL. II. P P 578 APPENDIX V. " the coast of Spain and the coast of the empire of Morocco, it " marks geographical lines precisely drawn. But if we were to say " that the intercourse between the coast of Spain and that of the " empire of Morocco was interrupted by the religious opinions and " the habits of living prevailing in the two countries, the word " ' between' would have no other eiFect than to point out the " countries or nations whose intercourse is spoken of as interrupted " by the causes enumerated, and would mean no more than what " is meant by the same word in the 11th article of this Treaty, where " the expression is ' between their respective people.' When we " leave this narrow ground of argument, and proceed to consider " the whole context of this article, the generality of the expres- " sions, the most obvious interpretation of those expressions, and " all the probable and possible consequences which may follow " from our exposition of this article, the subject expands itself to " an alarming magnitude, and the argument would take a very " wide compass indeed if it were now to be entered into for the " first time : but after the very elaborate discussion which this " cause has undergone in the Court of King's Bench, where a " solemn judgment was pronounced at the close of a fourth argn- " ment, and considering that that judgment has now been submitted " to our review upon arguments which, though very ably put, have " not materially varied the state of the questions which have been " made and decided upon by that Court, we do not feel ourselves " called upon to enter very much at large into the subject, and I " shall content myself with stating as shortly as I can the grounds " upon which the unanimous opinion of this Court, that the judg- " ment of the Court of King's Bench is not erroneous and ought " to be affirmed, may be supported. " ' The language of the 13th Article is that the citizens of the " United States may freely carry on a trade between the said terri- " tories and the said United States, in articles not entirely pro- " hibited. They are therefore not restricted to trade in articles of " the growth, produce, and manufactiu-e of the United States : it " is enough that the articles they trade in are not articles prohibited " from being imported to the British territories in India, or ex- " ported from thence by anybody. If, then, they propose to trade " with the British territories in India in foreign commodities, as " they may do, they must use means to furnish themselves with " those commodities. In the nature of things it must be done in " a course of trade. The obvious coxirse of trade is that they " should carry their native commodities to other countries where " they can be exchanged with the most advantage for articles proper " for the East India market, and that they should then proceed to " India in order to carry on a trade there in those articles. I " find nothing in the Treaty which will warrant me in saying that it " was the intention of the contracting parties that the trade conceded APPENDIX V. 579 " by the Treaty should not be so carried on. Mr. Rous found " himself obKged to acknowledge that the citizens of the United " States might within the terms of this Treaty first import into " America the articles in which they propose to trade with the " British territories in India, and then export them from America " in a direct voyage to the East Indies, and he could not deny that " they might have imported these articles into America even from " London. Indeed it would have been a most extraordinary state " of things if they might have gone to every other market for the " goods they wanted, but that the British market was excluded. " And as to the apparent disadvantage under which the citizens of " the United States would carry on trade with the British terri- " tories in India so conducted, Mr. Rous argued, that so to under- " stand the Treaty would be only to give the fair and due preference " to the great national commerce of the East India Company. " Whether this trade should have been conceded under any quali- " fications or restrictions is one thing, it having been conceded, " now to attempt to cramp it by a narrow, rigorous, forced con- " struction of the words of the Treaty is another and a very different " consideration. "We cannot suppose that an indirect advantage " was intended to be reserved to the East India Company by so " framing the Treaty that the American trade might by construction " be put under disadvantage: because this would be a chicanery '' unworthy of the British Government and contrary to the charac- " ter of its negotiations, which have been at all times distinguished " for their good faith to a degree of candour which has been sup- " posed sometimes to have exposed it to the hazard of being made " the dupe of more refined politicians. The nature of the trade " granted in my opinion fixes the construction of the grant. If it " were necessary to go farther, strong arguments may be drawn " from the context of this article and the contrast which the com- " paring it with the preceding article will produce. Prom the " context it appears that the trade was to be free, subject only to " certain specific regulations. The citizens of the United States " are put upon the same footing as to duties with British subjects. " No question is proposed, no means of ascertaining the fact are " provided, where they come/rom, though it is anxiously stipulated " where they are to go to. The words ' original cargo'' are to be " found in the article, and it was supposed they might be used as a " ground to infer that the trade was to be direct from the United " States. But ' original cargo ' is plainly set in opposition to the " cargo to be taken in in India. The provision respecting it is that " though the coasting trade is not permitted to the citizens of the " United States, they may carry the cargo, which they originally " brought with them, into the ports of the British territories from " one port of delivery to another, &r the purpose of a market. •' The word original serves the purpose for which it is used per- p p 2 580 APPENDIX r. fectly well, and it marks a total indifference to the question wLere the cargo was picked up. I have already had occasion to take notice that as to the cargo to be imported, no other restriction or qualification was in the view of the contracting parties than that it should consist of articles not expressly prohibited. But when this article is contrasted with the preceding article, the true con- struction of it will be seen in a .still clearer point of view. The 12th Article is in substance, that it shall be lawful for the citizens of the United States to carry to any of His Majesty's islands and ports in the West Indies from the United States in their own vessels, not being above seventy tons, any goods or merchandise being of the growth, manufacture, or produce of the said States, which British vessels might carry to the islands from the said States, and that the citizens of the United States may purchase, load, and carry away in their said vessels to the United States from the islands, all such articles being of the growth, manufac- ture, or produce of the islands, as British vessels could carry from thence to the said States, provided that the American vessels carry and land their cargoes in the United States only, it being agreed that the United States are to prohibit and restrain the carrying any molasses, sugar, coffee, cocoa, or cotton in American vessels, either from His Majesty's islands or from the United States, to any part of the world except the United States, and there is a proviso that British vessels may import from the islands into the United States, and may export from the United States to the islands, all articles of the growth, produce, or manu- facture of the islands or of the United States respectively, which by the laws of the said States might be then imported or exported. " ' The trade to be carried on between the citizens of the United States and the British "West India islands, by virtue of this article, is required to be in goods of the growth, produce, or manufacture of the islands and United States respectively. ~ This trade, in the nature of it, must be immediate and direct. It could not be in the contemplation of the contracting parties that it might be cir- cuitous, except indeed within the limits of the United States and within the range of the British West India islands, and so far, as I take it, it is circuitous. The contracting parties could not look to so remote a possible case as that a citizen of the United States might load the native commodities of the United States in a foreign port, and therefore we are not driven to collect the meaning of this article from the precision of the language it uses. Its language is however most precise. The terminus a quo and the terminus ad quem are designed with as much certainty as would be required in an indictment for not repairing a particular part of the King's highway. And to exclude all possibility of misapprehension, to mark how entirely this trade was to be im- mediate and direct, a provision is added that the United States APPENDIX V. 581 " are to prohibit the carrying goods of the produce of the West " India islands in American vessels to any port of the world except " the United States. Thus contrasted, those articles afford an " illustration of the internal evidence of the import and true intent " and meaning of each considered separately, and the conclusion " from the whole appears to us to be irresistible that the trade to " be carried on under the 12th Article between the United States " and the British West India islands, is a direct trade, and that the " trade to be carried on between the United States and the British " territories in the Bast Indies, under the 13th Article, may be as " circuitous as the enterprising spirit of commerce can make it. " There may be reason to apprehend that such an intercourse with " the British territories in the East Indies may prove very injurious " to the interests of the Bast India Company, and to Great Britain " in respect of the great national commerce which is carried on by " that Company. In particular there may be reason to apprehend " that this Treaty will open a door to many of our own people " whom the policy of our laws has shut out from a direct trade to " the East Indies. In truth it can hardly be expected that the " spirit of commerce, too often found eluding laws made to keep " it within bounds, that the lucri bonus odor should not embark " British capital in this trade. This ought to have been foreseen, " and therefore I conclude it was foreseen, and that it was found " that the balance of advantage and disadvantage preponderated in " favour of the Treaty. If not, those who advised it will have to " answer for it : the responsibility is not with us. We are not " even the expounders of Treaties. This Treaty is brought under " our consideration incidentally as an ingredient in a cause in " judgment before us : we only say how it is to be understood be- " tween the parties to this record. This we are bound to do ; and " we have but one rule by which we are to govern ourselves. We " are to construe this Treaty as we would construe any other instru- " ment public or private. We are to collect from the nature of " the subject, from the words and from the context, the true intent " and meaning of the contracting parties, whether they are A. " and B., or happen to be two independent States. The judges " who administer the municipal laws of one of those States would " commit themselves upon very disadvantageous ground, — ground " which they can have no opportunity of examining, if they were " to suffer collateral considerations to mix in their judgment on a " case circumstanced as the present case is. It has been urged " that in this instance (at least as to the goods in the third policy) " this was a commerce direct from this country, and that this " Treaty does not open a trade between Great Britain and the " British territories in the East Indies to the prejudice of the " monopoly vested in the East India Company. This objection is " plausible, but not founded. The circumstance that this parf of 582 APPENDIX V. " the cargo of tlie Argonaut was procured here, and the share " which the plaintiff Wilson had in procuring it, might have de- " served consideration as evidence of a collusion, by means of " which Wilson was carrying on for himself an illicit trade to the " East Indies, which might have subjected this ship and cargo, or " this part of the cargo, to seizure and confiscation. But this use " has not been made of the facts found by the special verdict ; and " no other use, consistent with otu: opinion of the legal effect of " the Treaty, could be made of them. For a citizen of the United " States being allowed to trade to the British territories in India, " generally with an exception of a few articles onlj', as he may " take in his cargo in the ports of his own country, so he may " take it in in the ports of this country as well as any other ; and " he may employ an agent, and that agent may be a British sub- " ject. It is a lawful agency. It seems to me impossible to main- " tain in argument that the subject of a nation in amity who may " trade to the British territories in India, should be excluded from " one market for his outward investment, when all other markets " are open to him, and when it is distinctly admitted that the " markets of all the world, including ours, cirenitously must be " open to him. " ' There remains one other topic of which I am called upon to " take some notice. It is said that Collet, who is solely interested " in the two first of these policies, and has a joint interest with " Butler in the last, being a natural-bom subject of this country, '' cannot shake off that character and become an American, so as " to entitle himself to the protection of this Treaty. He is a British " subject trading to the Bast Indies : his trade is therefore illicit : " the voyages insured are illegal : and the policies are void. Or, " perhaps the objection ought to be put another way, thus : The " vessels in which only the trade can lawfully be carried on between " the United States and the British territories in India, according " to the provisions of the statute 37 Geo. III. c. 97, must be " owned by subjects of the United States, and whereof the master " and three-fourths of the mariners, at least, are subjects of the " United States : whereas this vessel, the Argonaut, was in part " the property of a natural-born subject of this country, and this " part-owner was also the master : consequently she was not owned " by a subject of the United States, nor navigated by a master a " subject of the United States, within the true intent and meaning " of the navigation laws, and particularly the statute 37 Geo. III. " c. 97. The conclusion will be the same. The voyages insured " were therefore illegal and the policies void. This is the only " point in the case which has appeared to me to have any difficulty " in it. I must confess that when I found it stated as a fiict in " this special verdict that CoUet and Butler were natural-born " subjects of His Majesty, I felt myself embarrassed, and I could APPENDIX V. 583 " not readily disengage myself. And when I found that in the " year 1797 there had been a reference from the Privy Council to " the then Advocate-General and the two law officers of the Crown, " and that they had concurred in opinion that the master of an " American vessel, a subject of the United States domiciled there, " but in fact a natural-bom subject of Great Britain, was, not to " be considered as a subject of the United States within the meaning " of our navigation laws, founding themselves upon an opinion " of Lord Hardwicke when he was Attorney-General, and that the " Council had adopted and acted upon that opinion, I felt my diffi- " culty increase upon me ; for, though this was not a jiidicial deci- " sion (as in the argument at the bar of the Court of King's " Bench it was supposed to be), it was certainly of the highest " authority next to a judicial decision ; it was a public act of the " Executive Government, founded on the advice of eminent and " learned men, whose situations called upon them to make them- " selves well acquainted with our navigation laws, and must have " made them very familiar with all the questions which had arisen " upon those laws : and it was therefore entitled to very great " respect from me. It may be observed that this order might have " been followed by a judicial decision. It purports to recommend " that, under the actual circumstances, the vessel should be admitted " to an entry though she was not navigated according to law. Not- " withstanding the order, and the entry in consequence of it, the " vessel might have been seized and prosecuted in the Exchequer, " and so the question might have been brought to a judicial deci- " sion. It was done in the case of Scott qui tarn v. Schwartz, " Com. 677, cited in the argument. By the way, I do not under- " stand upon what ground the case of Butler was distinguished " from Collet's case, unless Butler has been expressly discharged " from his allegiance by Act of Parliament, in consequence of our " acknowledgment of the independence of the United States. " They were both natural-born subjects, they were both adopted " subjects of the United States, and it is to be said of both Nemo " patriam in qua naius est exuere, nee legeantice dehitum ejurare " possit. It was observed by Lord Hale, that a natural-born sub- " ject of this country may by foreign naturalisation entangle himself " in difficulties and a conflict of duties. So may the naturalized or " denizen subject of the King of Great Britain. Yet it is clear " that we and all the civilized nations and States of Europe do " adopt (each according to their own laws) the natural-born sub- " jects of other countries. So, as I take it, Vattel puts it in the " passages referred to. Our laws give certain privileges and with- " hold certain privileges from our adopted subjects, and we may " naturally conclude that there may be some qualification of the " privilege in the laws of other countries. But our resident " denizens are entitled, as I take it, to all sorts of commercial pri- 584 APPENDIX A'. " vileges whicli our natural-born subjects can claim. We should " con?idcr them as English in the language of the Navigation Act. " The United States do undoubtedly consider their adopted sub- " jeots as subjects of the United States within their laws. And I " take it that we should consider their adopted subjects, if they " happen not to be natural-born subjects of the King of Great " Britain, as subjects of the United States within our navigation " laws. To this proposition I take the case of Scott v. Schwartz to be " in point, if it wanted an authority. The case now begins to work " itself clear. It comes to this question : what difference does the " circumstance of the adopted subject of the United States being " a natural-born subject of the King of Great Britain make? Is " there any general principle in the law of nations (out of vfhich " this adoption of siibjeots seems to have grown) that in the parent " Sfate the adopted subject is incapable of enjoying the privileges '' which have been conceded by the parent State to the other sub- " jects of that State which has adopted him ? I know of no such " disabling principle. Let us, then, come to our own municipal " law. Loi-d Hale says foreign naturalisation may involve the " natural-born subject in a conflict of duties. This is eloquence, " but not precision. What are the duties of which there raay be a " conflict? Our laws pronounce that if there should be war " between his parent State and the State which has adopted him, he " must not arm himself against the parent State. Perhaps they " go further and say that if he is here he may be prevented from " returning to his domicile in the State which has adopted him: " that if he is there, he must, on receiving the King's commands " under his privy seal, return hither on pain of incurring a con- " tempt and penalties consequent upon it. Whether the proclama- " tion which has been introduced into this cause will have the same " effect as a privy seal served upon the party, is a question not neces- " sary to be here discussed. It cannot have a greater effect, nor " an effect of a different nature, and may therefore be laid out of '' the ease. Our municipal laws may attach upon him in some " other cases, but I conclude in no instance which by analogy can " govern the present case, because I have heard of no such argu- " ment from analogy. Upon what authority, then, is it said that a " natural-born subject of the King of Great Britain shall not trade " to the East Indies, though he is an adopted subject of another " country whose subjects in general are allowed to trade to the " East Indies? Shall it be enough to say the rest of the King's " subjects are not allowed to trade to the East Indies, and there- " fore you, being the King's subject, shall not ? He will answer, I " have a privilege which the rest of the King's subjects have not. " I am the King's subject, but I am also the subject of the United " States, and Great Britain has granted to the subjects of the " United States that they may trade. He may add, I violated no API'ENDIX Y. 585 " ]aw of my parent State in procuring myself to be received a " subject of the United States. She encourages the practice, for " she herself adopts the subjects of other States. "Why then are " the fruits of my adoption to be withheld from me ? If it be said " to him, You, a British subject, ought not to trade to the loss and " injury of the Bast India Company, who have a monopoly, he " may say. The subjects of the United States may and ought to " carry on this trade under the authority of the laws of this " coimtry — under the authority of the same laws which gave to the " East India Company their monopoly. If the Company sustain " a loss, it is damniim sine injuria. In short, it being once " granted that a natural-born subject of the King of Great Britain " may become a subject of the United States, there can be no " breach of moral, political, or legal duties, no conflict of duties " in claiming or exercising the privileges which belong to that " character. The same train of reasoning, in my judgment, goes " to prove that it is not yet sufficiently established to be now taken " for clear law upon the ground of which we ought to declare " these contracts void, that a natural-born subject of the King " naturalized or otherwise adopted as a subject by a foreign State, " is not to be considered within our navigation laws as a subject " of that foreign State when acting in the character of the master " of a vessel belonging to the subjects of that foreign State. Such " a man is certainly, to many purposes, ' of that country or place,' " which are the words of the Navigation Act, and ' a subject of " the United States,' which are the words of the stat. 37 Geo. III. " c. 97. In point of title to this character of subject, he is suffi- " ciently so within our navigation laws. I mean that he is suffi- " ciently adopted, according to the case in Comyns, to be considered " a subject of that country within our navigation laws, supposing " his claim not to be repelled by his being a natural-born subject " of Great Britain. I am not prepared to say, highly as I respect " the authority of those who held that opinion, that this character " of natural-born subject will control or suspend the legal ojaeration " of that of a su'oject of the United States. There is here no con- " flict of duties. Both characters may stand together ; and if some " political inconveniences, such as those suggested in the argument " before us (though they seem very remote), should follow, yet if " these inconveniences are not of consequence enough to prevent " the practice of the adoption of subjects by Great Britain and " every other State in Europe, we cannot satisfy ourselves that they " ought to control the legal consequences of that adoption. We " are of opinion that there is no error in this judgment, and that it " ought to be affirmed.' " Judgment affirmed " (rf), (d) Mr. Justice BuUer was absent from the 20th, and Mr. Justice Heath from the 24th of April to the end of the term, from indisposition. 586 APPENDIX V. No. 4. THE JONGE JOSIAS (e). " This was a Danish ship, which with several others had been seized by Admiral Berkley, in the Tagus, on the 24th of February, 1809, and sent to England for adjudication. In the first instance a claim of territor'y had been advanced by the Portuguese Consul, but that was withdrawn, and the question now arose upon a claim which had been given in on behalf of the master for three eighth parts of the ship, his property, as protected under the XVIth Article of the Convention of Cintra. The article provides ' that all subjects of France, or of Powers in friendship or alliance with France, domiciliated in Portugal, or accidentally in the country, shall be protected ; their property, of every kind, moveable and' immoveable, shall be respected ; and they shall be at liberty either to accompany the French army or to remain in Portugal. In either case their property is guaranteed to them, with the liberty of retaining or of disposing of it, and of passing the produce of the sale thereof into France, or any other country where they may fix their residence, the space of one year being allowed them for that purpose. It is fully understood that shipping is excepted from this arrangement, only, however, in so far as regards leaving the port, and that none of the stipulations above mentioned can be made the pretext of any commercial speculation.' It was stated in the claim that the ship entered the port of Lisbon some time in August 1807, prior to the declaration of hostilities on the part of England against Denmark, and also prior to the occu- pation of Lisbon by the French, and that she remained there unmolested until she was seized by Admiral Berkley. " On behalf of the Claimants. — A letter from Admiral Cotton, who commanded ofi" the Tagus in August 1808, was relied on to show that he had not acted against these vessels after, or in conse- quence of the Convention of Cintra ; and it was contended gene- rally, that as these Danish masters were the subjects of a Power in amity with France, and accidentally in the country, they came fairly within the simple construction of the Treaty, and were entitled to protection under it so long as they remained in port. That the only exception with respect to shipping related to their quitting the port, and that it was clear, from the exception itself, that property of that description was within the intent and mean- ing of the contracting parties. " For the Captors. — It was urged that the proviso as to ship- ping must be taken with reference to the context, and could have ((■) 1 Edwards' Admiralti/ Reports, 128-134. APPENDIX V. 587 ' this meaning only ; that if anj' persons included in the preceding ' part of the article happened to be possessed of any property in ' shipping, the protection should also extend to that description ' of their property. That the article evidently referred to such ' persons as were adherents to the French cause in Portugal, and ' not to persons going there on other grounds and with other ' views. That the permission to dispose of the property, and to ' pass the proceeds into France, or any other country where they ' might fix their residence, showed that the article was not intended ' to apply to this description of persons. That it was an interpre- ' tation sufficiently large to admit that it extended to all persons holding connection with the French during the time they were in possession of the country, and could not be extended to cases ' not in the contemplation of the contracting parties, nor within ' the sound interpretation of the words employed in the instrument ' which they had constructed. " JUDGMENT. " Sir William Scott. — I am called upon to decide this question, ' and every consideration of public policy and of tenderness for the ' parties interested, makes it proper for me not to delay giving the ' opinion of the Court upon the legality of the claim, which has ' been submitted to its consideration. In the first instance, a claim ' was given by the Portuguese Government for these vessels, as ' having been taken in violation of the territorial rights of that ' nation. But it has been withdrawn, and consequently there is ' an end of any protection which these Danes can derive from a ' pretension so introduced, it being an established law that the claim ' of territorial right can be advanced only by those to whom the ' territory belongs; the subjects of other States can do no more than ' refer themselves for redress to the neutral Power under whose ' rights they hoped to find protection. The parties, however, have ' set up a claim under the stipulations of the Convention of Cintra, ' which, it is assumed, are applicable to the property of these ' Danish masters of vessels. Now I think there is a question pre- ' liminary even to this, namely, whether the stipulations of a ' Treaty can be set up by those who were not parties to it. The ' French, who were parties to the Treaty, might undoubtedly, ' though they are enemies, contend for that construction which ' they might allege was in the intent and meaning of the con- ' tracting parties at the time, and they have a right to demand ' the application of the Treaty so construed, to those persons on ' whom they meant to confer protection. But whether others who ' have no rights as parties to that Treaty, but who are indirectly ' benefited by it, are competent to contend for its fulfilment, is, I ' think, more than doubtful. Taking it, however, that these Danish masters are competent to claim under the Treaty, the question 588 APPENDIX V. " then is, whether the construction here contended for is that " which the Court would be warranted in adopting. For although " the Court might be disposed to put a favourable interpretation " upon the articles of the Treaty, it is bound to construe them accord- " ing to their natural and fair meaning, and not to impose upon the " contracting parties stipulations which were never in their con- " templation. The business of the Court is to expound and ex- " plain, not to frame original Treaties. Now it is a feature of the " Convention of Cintra, very illustrative of its real character, that " it is a Treaty for the military evacuation of Portugal by the French " army, and that the parties to it are the commanders of the re- " spective armies. That is a circumstance which impresses a strong " conviction that this Treaty has no direct reference to maritime " interests, and ought not to receive such an application, unless " it is distinctly expressed. If there are any articles pointing to '■ the immunity of these vessels, the Court would be inclined to give " them full effect, and not to construe them with a punctilious hesita- " tion and scrupulosity, respecting the competence of the axithority " under which they were framed. But in general, the fact that it was '■ drawn up by military persons, and for great military purposes, " does give the Treaty a character which is useful as expository of " its true meaning. The maritime department ivas separate and " distinct, and under a distinct authority ; unless, therefore, there " are articles that do expressly point to maritime objects, it is " reasonable to conclude that they were not in the contemplation of " the parties themselves. Taking that as a fair rule of exposition, " I am to consider the effect of the XVIth Article of the Treaty, as " applied to the claims of the masters of these Danish vessels, " which were lying in the Tagus at the time ; and it would cer- " tainly be a singular circumstance if the French generals had " stipulated for the protection of the property of these persons who " happened to be upon the spot, amounting only to a small pai-t of " the vessels, without making any provision for the remaining parts " of those vessels, which were equally the property of the allies of " France, though not personally in Portugal at that time. The " words of the article are these, ' that the property of persons " domiciliated, or accidentally in the country, shall be protected; ' " and under this description it is said, that these persons are to be *' considered as being accidentally in the country, and that therefore " they come within the provisions of this article. The words are " certainly large, but I must again refer to what I before observed, " that this is a Treaty applicable to military afEairs, to the exclu- " sion of every object of maritime policy. Under the terms ' domi- " ciliated,' these Danish masters certainly do not come ; do they " then under the other description of persons 'accidentally in the " country ? ' If these words stood alone, with the strong disposi- " tion I tool to give them tlie most favourable construction, I APPENDIX V. 589 " should, though not perhaps without doing some violence to their " meaning, be inclined to hold that these personSj being on board " their ships in the port of Lisbon, might be included under the " terms ' accidentally in the country.' I should under that dispo- " sition be inclined to hold that the word ' accidentally ' applied to " all persons in a situation contra-diatinguished from domiciliated, " though perhaps more immediately to persons attending on the " armies, or on visits, or residing there for the purposes of business, " pleasure, or curiosity. It would require, however, all the indul- " gence, which I admit the personal circumstances of the case " call for, to include under the description masters of ships coming " merely to the port, and not to the country. But when I look to " the context, I think it results in the clearest manner, that the " words never were intended to convey such a meaning ; for how " does the article go on ? ' That they shall be at liberty to remain " in Portugal, or to accompany the French army.' That is the '• alternative : now what kind of option is this, what prospect does " the permission to accompany the French army, or to remain in " Portugal, hold out to these Danish masters? They could only " remain by giving up their vessels and their employment ; and " as to following the French army, it is quite ridiculous when " applied to persons so circumstanced. The article then goes on in " the same strainj ' that they shall be protected, and may be at " liberty to transfer themselves to France, or any other cormtry, in " which they may wish to fix a residence.' Now these are persons " who have a fixed residence already in their own country ; they " have no wish to remove to France, which is entirely out of all " contemplation with them, or to any other country but their own ; " they have no intention of disposing of their shares in these vessels, " still less of remaining in Portugal. Neither the one nor the other '• of these alternatives can, without a ludicrous perversion of the " terms, be applied to these persons, or to the property of masters " of vessels, who come to the port only to go back again, and it is " evident that they were wholly out of the view of the contracting " parties. Then foUow the words ' shipping is included ' in this " article, which has very justly been described as clouded in some " of that obscurity which hangs over no small portion of this Treaty. " But I do not understand those words as enlarging the description " of persons meant to be benefited. The interpretation which I '' put upon the words is this : there are a great number of foreign " merchants residing at Lisbon, many of whom are possessed of " shipping, and the ships of such persons who are themselves pro- " tected by the preceding part of the article to which these words " must refer, are to be protected also ; it being stipulated that if " they send the ships out to sea, they shall ' not carry off their pro- " perty without being under the view of those who have a right to " guard against any abuse of the indulgence.' Under these con- 590 APPENDIX V. ■ siderations, and not without considerable pain, I feel myself bound ■ to construe the Treaty in a manner unfavourable to the claimants, ■ and to hold that it does not extend to the protection of their pro- perty in these vessels, which I am satisfied was not within the view of the persons who framed the Convention. There are circumstances in the case which entitle this unfortunate class of men to the utmost indulgence from those who may be ulti- mately benefited ; but at present it is my public duty to pronounce that their property in these vessels is not protected under the Treaty." July 29th, 1830. Under the Treaty of 1794, be- tween Great Britain and America, and the Act of the 37 Geo. 3. C.97, American citizens who held lands in Great Brii-ain on the 28th of October, 1795, and their heirs and as- signs, are at all times to be con- sidered, so far as re- gards these lands, not as aliens, but as na^ tire sub- ■jects of Great Britain. No. 5. SUTTON V. SUTTON (/). " This was a bill for the specific performance of a contract ; and the Master having reported against the title, an exception was taken to his report, which now came on to be argued. " The title of the vendor was derived under a conveyance from a citizen of America; and the question was, whether, under the circumstances of this case, and in relation to the property which was the subject of the contract, an American citizen was to be deemed an alien ? " Samuel Strudwick, before and at the time of the separation of the United States of North America from Great Britain, was settled in North Carolina, and he continued to reside there, as an American citizen, tUl his death in 1794. By his will, dated in that year, he devised to ' his good friend Margery, widow of Stephen , lately living at Fulham in England, his houses and lands in the city of London, in trust to be sold, when Mr. Vaughan's annuity shall drop in, and the monies arising from such sale to be employed as therein mentioned ; ' and, after be- queathing two small annuities, he gave the residue of his real and personal estate to his son William Francis Strudwick. A part of this testator's property consisted of an undivided share of certain tenements in the city of London, which were the subject of the present suit. A person of the name of Margery Bourget was considered to be the devisee referred to in the will : she declined to carry the trust into effect, or to interfere in the management of the property, and was said to have died about the year 1806. ' William Francis Strudwick, the heir-at-law and devisee of ' Samuel, was an American citizen, and died intestate in the year • 1810, leaving Samuel Strudwick, also an American citizen, his • eldest son and heir-at-law. In 1819, the last-mentioned Samuel (/) 1 Russell ^- Mi/lne's Reports, 663. APPENDIX V. 591 " Strudwick sold and conveyed his undivided share of the tenements " in the city of London ; and upon this conveyance the title of the " vendor depended. " One of the objections taken to the title was in the following " words: — 'That Samuel Strudwick, the vendor, in 1819, of two " eighth parts of the estate, was an alien, and incapable of convey- " ing them, such shares having been the property of Samuel Strud- " wick, his grandfather, who was settled in America at the time of " the separation of the two countries in 1788, and who was alleged " to have devised them to his son William Francis Strudwick, who " was an American, and died there in 1810 intestate, leaving the " said Samuel Strudwick, the grandson, his heir-at-law; and that " no proof had been shown that, after the separation, Samuel " Strudwick, the grandfather, or William Francis Strudwick, was " a subject of the King of Great Britain.' " The question turned upon the construction of the Treaty of " Peace between Great Britain and the United States, signed at " London, on the 12th of November, 1794, and of the 87 Geo. III. " c. 97, which was passed for the purpose of carrying the Treaty " into execution, " By the first article of that Treaty it was agreed, ' that there " should be a firm, inviolable, and universal peace between Great " Britain and the United States.' " The second article, after some regulations relative to the with- " drawal of the British troops, declared, ' that the settlers and " traders within the precincts of the posts from which the British " troops were to be withdrawn, should continue to enjoy their pro- " perty of every kind, and be at hberty to remain there, or to " remove their effects, and to sell or retain their lands and property " at their discretion ; that such of them as should continue to re- " side within the boundary line should not be compelled to become " citizens of the United States, or to take any oath of allegiance to " the Government thereof, but should be at full liberty so to do if " they thought proper, and should declare their election within one " year after the evacuation aforesaid ; and that all persons who " should continue there after the expiration of the year, without '' having declared their intention of remaining subjects of His " British Majesty, should be considered as having elected to be- " come citizens of the States.' " The third, fourth, and fifth articles related to the boundaries " of the new States, the navigation of the rivers, &c. ; and the " sixth, seventh, and eighth, to the adjustment of the pecuniary " claims of individuals. " The ninth article enabled the subjects of either country to hold " lands in the other, and to sell and devise them as if they were " natives. The terms of it, relative to Americans holding lands in " England, were, ' that American citizens, who then held lands in 592 APPENDIX V. " the dominions of His Majesty, should continue to hold them " according to the nature and tenure of their respective estates and " titles therein, and might grant, sell, or devise the same to those " whom they should please, in like manner as if they were natives ; " and that neither they, nor their heirs or assigns, should, so far as " might respect the said lands and the legal remedies incident " thereto, be regarded as aliens.' " And by the tenth article it was stipulated, ' that neither debts " due from individuals of the one nation to the individuals of the " other, nor shares nor monies which they might have in the public " funds or private banks, shall, even in any event of war or national " differences, be sequestrated or confiscated ; it being unjust and " impolitic that debts and engagements contracted and made by " individuals haviiig confidence in each other, and in their respective " Governments, shall ever be destroyed or impaired by national " authority, on account of national differences and discontents.' " Hie subsequent articles of the Treaty, down to the twenty- " eignth, contained various stipulations relative to navigation, and " the mutual delivery up to justice of persons charged with murder " or forgery. The twenty-eighth article declared, ' that the first " ten articles of the Treaty should be permanent, and that the "subsequent articles, except the twelfth' (vvhioh related to the " intercourse with the West Indies, and was to continue in force for " two years after the then war), ' should be limited in their duration " to twelve years, to be computed from the day on which the ratifi- " cations of the Treaty should be exchanged, subject to the renewal " of the negotiations at a period therein mentioned; but if His " Majesty and the United States should not be able to agree on a " new arrangement, in that case all the articles of the Treaty, except " the first ten, should then cease and expire together.' " In 1797, the 37 Geo. III. c. 97 was passed, which is intituled, " ' An Act for carrj'ing into execution the Treaty of Amity, Com- " merce, and Navigation, concluded between His Majesty and the " United States of America.' It contained the following clauses : — " ' Sect. 24. And whereas by the ninth article of the said Treat}^, " it was agreed that British subjects who then held lands in the " territories of the said United States, and American citizens who '' then held lands in the dominions of His Majesty, should continue " to hold them according to the nature and tenure of their respective " states and titles therein, and might grant, sell, or devise the " same to whom they should please, in like manner as if they were " natives ; and that neither they nor their heirs or assigns should, " so far as might respect the said lands and the legal remedies " incident thereto, be regarded as aliens : be it therefore enacted, by " the authority aforesaid, that all lands, tenements, and heredita- " ments in the kingdom of Great Britain, or the territories and " dependencies thereto belonging, which, on the said 28th of APPENDIX V. 593 " October, 1795 (being the day of the exchange of the ratifications " of the said Treaty between His Majesty and the said United " States), were held by American citizens, shall be held and enjoyed, " granted, sold, and devised, according to the stipulations and agree- " ments contained in the said article ; any law, custom, or usage to " the contrary notwithstanding. " ' Sect. 25. Provided always, that nothing herein contained " shall extend, or be construed to extend, to give any right, title, " or privilege to any person, not being a natural-born subject of " this realm, which such person would not have been entitled to if " this Act had not been made, other than and except such rights, " titles, and privileges as shall be necessary for the true and faithful " performance of the stipulations in the said article contained, " according to the true intent and meaning thereof, or to give to " any person, not being either a natural-born subject of this realm, " or a citizen of the said United States, any right, title, or privilege " to which such person would not have been entitled if this Act had " not been made. " ' Sect. 27. That this Act shall continue in force so long as the " said Treaty between His Majesty and the United States of America " shall continue in force, and no longer.' " This Act was continued by the 45 Geo. IH. c. 35, which, after " reciting that the 37 Geo. HI. c. 97 ' was to continue in force so " long as the said Treaty shoxdd continue in force, and no longer, " which Treaty, or so much of it as relates to the matters contained " in the said Act, has now ceased and determined : and it is expe- " dient that the liberty of navigation and commerce between the " people of this kingdom and the people of the United States of " America should continue for a limited time, in the same manner " and under the same limitations and conditions as are specified in " the said Act,' — enacted that ' the said Act, and everything therein " contained, shall, notwithstanding the said Treaty has ceased and " determined, be deemed and taken to be and to have been in full " force and effect, and shall so continue in force until the 1st of " June, 1806.' " The 37 Geo. HI. c. 97 was subsequently continued from time " to time by the 46 Geo. III. c. 16, the 47 Geo. HI. sess. 2, c. 2, " and, finally, by the 48 Geo. HI. c. 6., to the end of the then " present session of Parliament. That session terminated in the " same year ; and no Act was afterwards passed to revive or prolong ■" the operation of the Treaty. " The point argued was, whether the twenty-fourth section of " the 37 Geo. III. c. 97, taken in connection with the ninth article " of the Treaty, continued in operation, so as to remove the in- " capacity of holding and transmitting lands in England, which " would otherwise have attached on William Francis Strudwick and " Samuel Strudwick, the grandchildren, as aliens. VOL. II. Q Q 594 APPENDIX v. " Mr. Bickersteth, Mr. Pemberton, Mr. Tyrrel, Mr. Wright, and " Mr. Wood in support of the objection to the title. " The Treaty of 1783 dissolved the tie of allegiance which had " previously subsisted between the Crown of England and the in- " dividuals who then became American citizens ; they and their " descendants, born out of the British dominions, were thenceforth " aliens ; and, accordingly. Doe v. Acklam (gr) has established " that a person born in the United States since 1783 cannot in- " herit lands in England. Doe d. Auchmuty v. Mulcaster (A). " WiUiam Francis Strudwick, and Samuel Strudwick, the grandson, " were clearly aliens. The only distinction between the present " case and that of Doe v. Acklam is, that the freehold of the tene- " ment in question was not in an English subject on the 28th of " October, 1795, but in an American citizen. Now it is true that, " as to such lands, the incapacity of alienage was removed by the " 37 Geo. III. c. 97 ; and so long as that statute was in operation, " American citizens might hold, grant, sell, or devise these lands " in the same manner as if they were natives. But by the twenty- " seventh section the Act is to continue in force only so long as " the Treaty shall be in force, and no longer : and the single " question therefore is, whether the Treaty was or was not in force " in 1819. On this point we have a legislative declaration in 180.5. " The 45 Geo. III. c. 35 says in the preamble, ' which Treaty, or " so much of it as relates to the matters contained in the said Act " {i.e. the 37 Geo. III. c. 97) has now ceased and determined ; ' " and among the matters contained in the said Act was the stipu- " lation for excluding the incapacity ari.sing from alienage ; and " the same statute declares, in the enacting clause, that ' the said " Treaty has ceased and determined.' By that statute, and two '' subsequent Acts, the 37 Geo. III. was revived, both retrospec- " tively and prospectively ; but it finally expired with the session " of 1808. In 1812 war broke out between the two countries, " which continued to rage tiU a new Treaty was concluded in " 1814. It is impossible to suggest that the Treaty was ' continu- " ing in force ' in 1813 ; it necessarily ceased with the commence- '' ment of the war. The 37 Geo. III. c. 97 could not continue in " operation a moment longer, without violating the plainest words " of the Act. William Francis Strudwick became then and remained " ever afterwards subject to all the incapacities of alienage. " It was said before the Master, that the first ten articles of the " Treaty were to be ' permanent,' which was construed as synony- " mous with ' perpetual ; ' but that is a construction which the " twenty-eighth article does not admit of The very first article is, (ff) 1B.% C. 779. (h) 6 B.Sf C. 771. Appendix v. 595 " ' that there should be a firm and universal peace between Great " Britain and the United States ; ' that is the first of the articles " supposed to be ever-enduring. Yet, what became of it in 1813 ? " There are many of the stipulations of the first ten article's which " could not possibly be observed in a state of war. The word " ' permanent ' is used, not as synonymous with ' perpetual or ever- " lasting,' but in opposition to a period of duration expressly " limited. The greater number of the articles of the Treaty were " to cease at the expii-ation of twelve years ; the first ten were not " to expire then, by the mere lapse of time ; they were to continue " so long as a Treaty of peace was in force ; but when war took the " place of peace, and the Treaty had no longer any existence, the " ninth article could not continue in operation. " Even if it were to be held, in consequence of the language of " the twenty-eighth article, that the intention of the framers of the " Treaty was to make the ninth article perpetual, there is nothing " in the Act of Parliament to give it that endurance. The Act " makes no mention of the twenty-eighth article of the Treaty, which " remains, therefore, a mere stipulation of the Crown, and cannot " create or extend an exemption from any disability imposed by " the law of the land. The continuance of the exemption could " not be prolonged beyond the duration of the Act : the Act was to " endure only so long as ' this Treaty,' that is, the treaty of amity, " commerce, and navigation concluded between His Majesty and " the United States of North America, should be in force ; and, " most unquestionably, that Treaty was not in force when Hia " Majesty and the United States were carrying on hostilities " against each other both by sea and land. " The construction contended for on the other side would lead " to most inconvenient results. One consequence of it would be, " that all the lands which, on the 28th October, 1795, belonged to " Americans, are taken for ever out of the operation of the general " law of England, and may, in all time to come, be transmitted to " aliens by descent, devise, or conveyance. " Mr. Wigram, in support of the same line of argument, sub- " mitted that the Treaty could not be deemed to be in force, unless " it was in force as a whole ; that it could not be in force as a " whole after the most important provisions in it had been broken ; " and, on the contrary, that it ceased to be in force as a whole " when the peace, the stipulation for which constituted the basis of " the arrangement, was exchanged for a state of war. He cited " Vattel (i), — ' We cannot consider the several articles of the " same Treaty as so many particular and independent Treaties ; for, " though we do not see the immediate connection between every (i) Book ii. c. 13, s. 203. a Q 2 596 APPENDIX V. one of these articles, they are all connected by this common rela- tion, that the Contracting Powers pass them with a view to each other, by way of compensation. I should never, perhaps, have passed this article, if my ally had not granted me another, which, in its own nature, has no relation to it. Everything compre- hended in the same Treaty has then the force and nature of reciprocal promises, at least if they are not excepted in due form. Grotius says, very well, that all the articles of a Treaty have the force of conditions, which by a default are rendered null.' " Mr. Preston and Mr. Dixon, Mr. Tinney and Mr. Garratt, in support of the title. " The Treaty contains articles of two diiferent descriptions ; some of them being temporary, and others of them being intended to be of perpetual obligation. Of those which were temporary, some were to last for a limited period ; such as the various re- gulations concerning trade and navigation ; and some were to continue so long as peace subsisted, but being inconsistent with a state of war, would necessarily expire -^rith the commencement of hostilities. There were other stipulations, which were to remain in force in all time to come, unafBected by the contingency of peace or war. For instance, there are clauses for fixing the bound- aries of the United States. Were the boundaries so fixed to cease to be the boundaries the moment that hostilities broke out ? The tenth article provides that debts due to individuals, and moneys which they may have in the public funds or private banks shall not be confiscated in the event of war : that is a stipulation which, firom the nature of things, as well as firom the plain import of the terms, was to be a binding obligation in war as well as peace ; for it was only to a state of war that it was at all appli- cable ; and, in sound construction, a similar force must be given to the immediately preceding article, on which the present ques- tion arises. It was intended to provide for the inconvenience which must naturally arise fi:om the division of one empire into two independent States, the subjects of each of which hold pro- perty situated within the territorial limits of the other ; and with that view, it declares that American citizens, who then held lands within the dominions of His Majesty, should continue to hold them, and have power to grant, sell, or devise them as if they were natives, and that neither they, nor their heirs or assigns, shoidd, in respect of their lands, be regarded as aliens. The efiect of it is to exclude, and to exclude for ever, the principle of alienage as to certain persons and certain lands: there is no limitation to its operation ; it is not confined to a state of peace, or to the individuals who then held the lands ; it includes their heirs and assigns : they, their heirs and assigns, are, with respect to such lands, to be considered as natives ; and, being considered as natives, their title to hold the lands could not be affected by APPENDIX V. 597 the breaking out of wav between the two countries. The twenty- fourth article tends still further to show that some of the stipu- lations, and among these the ninth article, were meant to be of perpetual endurance. " Now the effect of the twenty-fourth section of the Act of Parliament is to give the force of law to the ninth article of the Treaty ; and if that article, according to the sound construction of the Treaty, was to be of perpetual obligation, the enactment of the legislature, carrying into effect that which the King had agreed to do, but which his prerogative was not competent to accomplish, has declared that Americans who held lands within the dominions of His Majesty on the 28th of October, 1795, their heirs and assigns, shall in all time to come hold and enjoy them as natives. It is true that the twenty- seventh section has said that the Act shall continue in force only so long as the Treaty of peace continues in force ; but that section must necessarily be confined to those stipulations which were either of limited duration, or were in their nature such as to be entirely dependent on the existence of peace. " It has been argued that the recitals contained in the 45 Geo. III. c. 35, and the two subsequent Acts, have put a legislative con- struction on the 37 Geo. III. c. 95, and have declared that the Treaty, and consequently the latter Act, had ceased and deter- mined. But the operation of a statute is not to be restrained by the recital of a subsequent statute. Dore v. Gray (Jc). Besides, the Acts of the 45 Geo. III. and the following years contemplated only those provisions of the Treaty which related to commerce and navigation, and were to expire at the end of twelve years, unless they were expressly renewed for a further period. " The ninth article was more beneficial to English subjects than to American citizens ; and any restriction of its fair operation would be a public mischief, inasmuch as it would naturally lead America to adopt a similar restriction of the reciprocal privilege granted to subjects of the British Crown. " Suppose that an American citizen who, on the 28th October, 1795, held lands in England, died, leaving an elder son born in America, and a younger son born in England. Had the Treaty and the Act not been made, the younger son, on the father's death, would have inherited the lands : under the Treaty and the Act the eldest son was heir, and as such entitled to the property. Is it to be said that, if a war afterwards break out, his interest is to cease, and a title is to accrue to the Crown, which never cotild have had a pretext of claim if the devolution of the property had been regulated by the Common Law ? {k) 2 T. R. 365. 598 ■ APPENDIX y. " Mr. Bickersteth, in reply. "The Master of the Eolls. " ' The relations which had subsisted between Great Britain and " America, when they formed one empire, led to the introduction " of the ninth section of the Treaty of 1794, and made it highly " reasonable that the subjects of the two parts of the divided empire " should, notwithstanding the separation, be protected in the mutual " enjoyment of their landed property; and the privileges of natives " being reciprocally given, not only to the actual possessors of lands, " but to their heirs and assigns, it is a reasonable construction that it " was the intention of the Treaty that the operation of the Treaty " should be permanent, and not depend upon the continuance of a " state of peace. " ' The Act of the 37 Geo. III. gives full effect to this article of " the Treaty in the strongest and clearest terms ; and if it be, as I " consider it, the true construction of this article, that it was to be " permanent, and independent of a state of peace or war, then the " Act of Parliament must be held, in the twenty-fourth section, to " declare this permanency ; and when a subsequent section provides " that the Act is to continue in force so long only as a state of " peace shall subsist, it cannot be construed to be directly repugnant " and opposed to the twenty-fourth section, but is to be understood " as referring to such provisions of the Act only as would in their " nature depend upon a state of peace. " ' I am of opinion, therefore, in favour of the title, and consider " that the heirs and assigns of every American who held lands in " Great Britain at the time mentioned in the Act of the 37 Geo. III. " are, as far as regards these lands, to be treated, not as aliens, but '' as native subjects.'" No. 6. MALTASS V, MALTASS (J). Judgment by Dr. Lushington. "■.,.... Assuming, therefore, that the deceased died domiciled " at Smyrna, the first point is, — what is the law of Turkey as to " British subjects dying domiciled there? This depends on the " construction to he put on the Treaties between Great Britain and " the Porte. The leading object of these was to protect British " subjects trading to Smyrna, and, with this view, to modify the " law of Turkey so as to ensure them justice, so far as could be " attained. It is, I think, perfectly clear, from the Treaty, inde- (l) Robeiisori's Ecclesiastical Reports, pp. 70-81, See also, -3 Ciirtci.-:, 231, APPENDIX V. 599 " pendent of all historical facts, that a residence in Smyrna by a " British merchant was contemplated, and, if the contracting parties " have provided for the case of residence, it seems necessarily to " follow, that they must have intended to provide for the case of '' domicil, if domicil in Turkey could be acquired by the same " means as in other countries. Judge Story says : — ' That place " is properly the domicil of a person in which his habitation is " fixed without any present intention of removing therefrom.' If " this be applicable to a domicil in Turkey, such a case must have " occurred in the course of trade ; and, therefore, I conceive it " must, in legal contemplation, have been included when the parts " of the Treaty appKcable to British subjects trading in Turkey " came to be considered. I the more incline to this opinion, " because, however short might have been the residence of British " merchants in Turkey in the earliest times, the fact of their per- " manent residence for many years is undoubted, and some of the " Treaties bear date long after such permanent residence existed. " It never could, I think, be supposed that the Treaties did not in- " tend to protect British merchants, either composing a house of " trade, or carrying on business singly, who for years together " resided in Smyrna, having no other habitation, and without any " intention of quitting Smyrna, or, in other words, domiciled accord- " ing to Judge Story's definition. " If it be contended, that, at the time of concluding the Treaties, " neither party thought of British subjects domiciled in Smyrna, " that may perhaps be true, for little indeed was known or thought " of domicil, in the legal sense of the term, in those early times ; " but if the words of the Treaty are sufficient to cover the case, and " if the object of the Treaties was to apply to all British merchants, " then the application to a state of circumstances not particularly " contemplated, but within the general scope of the Treaties, would " not limit their construction. It would not be a casus omissus, " but simply the use of general terms to attain a particular object, " the particular circumstances which should call the compact into " action not being foreseen ; but the general forms intended to " govern all cases falling within the principle, whether seen or not " seen. It appears to me that the passages in the Treaties which I " shall presently cite are so wide in their terms as to comprise all " British merchants resident in Smyrna, and that the only exception " (which proves the universality,) is the case of a British subject " becoming a Mussulman. " Perhaps, also, there may be another reason why words dis- " tinctly appropriate to domicil were not used ; namely, both parties " considered domicil in that sense all but impossible, because the " sense they would have attributed to it would be a total abandon- " ment of British character. The reasons why they may have so " thought I will presently shortly discuss. 600 APPENDIX V. " I think, before I dose tliis brancli of my subject, that there are arguments of no small weight leading to this construction of the Treaties. Even at this day, although so many powerful minds have been applied to the question, there is no universally-agreed definition of the word domicil — ^no agreed enumeration of the ingredients which constitute domicil. This is expressed in the following remarkable language by Hertius: ' Verum in Us de- finiendis minim est quam sudant Doctores' (to). Indeed, I think there are no less than fourteen or fifteen different definitions of this word. The gradation from residence to domicil consists both of circumstances and intention ; nice distinctions have and must prevail, such as cannot be defined beforehand. Hence, if the Treaties did not apply to domicil, as residence would often become fused inlo domicil, British merchants, and, in case of their deaths, their families, would find themselves suddenly, and contrary to their intention, and to the presumption of intention, subject to a code, of laws wholly contrary to their religious per- suasions, their feelings, customs, and contemplation in making arrangements for the welfare of themselves and families; and, be it observed, the law of Turkey would come into operation (if residence became domicil), not only on property after death, but during the life ; and an individual might be living in Turkey out of the protection of any Treaty. I know not what would be (if the case were capable of arising) the law of Turkey applicable to British merchants so domiciled, but certainly entire subjection to Turkish laws would be a grievous evil to British merchants of Christian belief, education, and habits. " All these reasons appear to me to operate most strongly in favour of a liberal and extended construction of the Treaties ; in my opinion the contracting parties never contemplated the ano- maly which a contrary construction would lead to. " With regard, then, to the parts of the Treaties applicable to the question we are now discussing, to wit, whether the Treaties ex- tend to a permanent residence, and not merely to a temporary visit. The Treaties commence at an early period, but they are all included in the Treaty of the Dardanelles (1809). Now, in the construction of treaties of this description, we cannot expect to find the same nicety of strict definition as in modern docu- ments, such as deeds, or Acts of Parliament ; it has never been the habit of those engaged in diplomacy to use legal accuracy, but rather to adopt more liberal terms. I think, in construing these Treaties, we ought to look at all the historical circumstances attending them, in order to ascertain what was the true intention of the contracting parties, and to give the widest scope to the (m) 1 Hertiiis, Oper. s. 4, n. 3, p. 120. (edit. 1716). APPENDIX V. 601 language of the Treaties, in order to embrace within it all the objects intended to be included. " The first begins by stating ' that there had existed a good un- derstanding and an amity between the King of England (Charles II.) and the Porte. And it wa.s granted to him (Charles il.) that his subjects and their interpreters might safely and securely trade in these our dominions.' The first article stipulates: ' that the English nation and merchants, and all other merchants sailing under the English flag, with their ships and vessels, and merchandize of all descriptions, shall and may pass safely by sea, and go and come into our dominions, without any the least prejudice or molestation being given to their persons, property, or efiects, by any person whatever.' " At this period one of the objects to be attained was not simply permission to carry on trade, but protection firom the Turkish corsairs and pirates of that country, and that not merely confined to English merchants, but extended to all those who should accept the guarantee of the English flag. " Let us look to another part of the Treaty. The fifteenth article says : ' all Englishmen and subjects of England, who shall dwell or reside in our dominions, whether they be married or single, artizan or merchants, shall be exempt from all tribute.' These words ' dwell or reside ' clearly contemplate not a temporary but a permanent residence. I think also that the reference to 'married persons' indicates the same intention, for the residence of persons in that state is generally looked at as of a m6re per- manent and fixed character than that of mere ordinary traders. " Then it goes on to provide for the establishment of consuls in the different ports, and ' that any dispute between the English themselves shall be decided by their own ambassador or consul ; ' so that the Treaty contemplates a residence under the protection of national consuls. " Now I do not intend to go through the Treaty in detail : the sixteenth and eighteenth articles relate generally to the privi- leges granted to English subjeets perfectly distinct from resident Turkish subjects. The twenty-sixth article provides: ' that in . case any Englishman or other person subject to that nation, or navigating under its flag, shall happen to die in our sacred dominions, our fiscal and other officers shall not, upon pretence of its not being known to whom the property belongs, interpose any opposition or violence, by taking or seizing the efl^ects that may be found at his death, but they shall be delivered up to such Englishman, whoever he may be, to whom the deceased may have left them by will.' This then, in my opinion, it is per- fectly clear, must refer to a will made according to the law of England, for I am not aware of any power of testacy by the law of Turkey. The article goes on : ' and if he shall have died 602 APPENDIX V. " intestate (this means intestate by the law of England) the property " shall" be delivered up to the English consul, or if there be no " consul, in that case the property shall be sent over to England in " the next ship.' Now this section alone goes the length of saying, " not merely that i>he property of a person accidentally dying in the " Turkish dominions shall be delivered up, but it contemplates the " case of a person permanently resident there. The forty-sixth " article contemplates the case of an Englishman permanently re- " sident in Smyrna. ' If any interpreter shall die, if he be an " Englishman, proceeding from England, all his effects shall be " taken possession of by the ambassador or consul ; but if he be a " subject of our dominions, they shall be delivered up to his next " heir.' The forty-ninth article speaks of ' merchants of the afore- " said nation.' The sixty-first article is to this effect : ' If any Eng- " lishman shall turn Turk, and it shall be represented and proved " that, besides his own goods, he has in his hands any property " belonging to another person in England, such property shall be " taken from him, and delivered up to the ambassador or consul, " that they may convey the same to the owner thereof.' " What is the effect of this article ? If an Englisman turns a " Turk, his property will be governed by the law of Turkey ; but " if he has in his hands the property of any Englishman, that wiH " be regulated by the law of England. So that the case of an " Englishman becoming a Turk, and so becoming subject to the " law of Turkey, is contemplated, and ' expressio untus est exclusio " alterius.' " The ninth article of the latter Treaty provides that English " consuls shall not be named from among the subjects of the Porte. " Generally speaking, a consul does not acquire a domicil hy resi- " deuce ; but here a distinction is made between British subjects " resident at Smyrna, and those who are not British subjects. " If, then, the Treaty be applicable to British merchants resident " or domiciled, in the ordinary acceptation of the term, in Smyrna, " the provisions of the Treaty decide what is to be done in the case " of succession to personal estate, namely, that it is to follow the *' law of England. ....." APPENDIX V. 603 No. 7. STATUTES RELATING TO THE RUSSO-DUTCH LOAN. An Act to carry into effect a Convention made between His Majesty and the King of the Netherlands and the Emperor of all the Russias (ri). [28th June, 1815. j " Whereas, by a Convention signed at London on the 19th day of " May, 1815, between His Majesty on the one part, and the King " of the Netherlands and the Emperor of all the Russias respectively " on the other, the following articles, among others, were agreed " upon ; that is to say, His Majesty the King of the Netherlands " thereby engaged to take upon himself a part of the capital and " arrears of interest, to the 1st of January, 1816, of the Russian " loan made in Holland through the intervention of the House of " Hope and Company, in Amsterdam, to the amount of twenty-five " millions of florins Dutch currency; the annual interest of which " sum, together with an annual payment for the liquidation of the " same as thereinafter specified, should be borne by and become a " charge upon the kingdom of the Netherlands; and His Majesty " engaged on his part to recommend to his Parliament to enable him " to take upon himself an equal capital of the said Russian loan, " videlicet, twenty-five millions of florins Dutch currency ; the " annual interest of which sum, together with an annual payment " for the liquidation of the same, as thereinafter specified, should be " borne by and become a charge upon the Government of His " Majesty ; and the future charge to which his said Belgic Majesty " and His Majesty should be respectively liable in equal shares on " account of the said debt, was to consist of an annual interest of " five per centum on the said capitals, each of twenty-five millions, " together with a sinking fund of one per centum for the extinction " of the same, the said sinking fund being subject however to be " increased, on the demand of the Russian Government, to any " annual sum not exceeding three per centum, the same to be payable '' till the capital of the said debt should be fully discharged, when the " aforesaid charge for interest and sinking fund should wholly cease to " be borne by His said Belgic Majesty and His Majesty respectively ; " and His said Belgic Majesty and His Majesty respectively bound " themselves, on or before the usual day or days in each year on " which the interest on the said debt should be due and payable, to " deposit with the agent of the Russian Government in Holland, their " respective proportions of the said interest and sinking fund, as " above specified : Provided always, that previously to the advance " of each successive instalment so to be paid, the said agent shall be (n) 55 Geo. III. cap. 115. 604 APPENDIX V. " authorised to furnish a certificate to each of the said two high " contracting parties, declaring that the preceding instalment had " been duly applied in discharge of the interest, and in reduction of " the principal of the said debt, together with the corresponding " payments on account of the Eussian Government, on that part of " the debt which should remain a charge on the said Grovernment ; " and it was further agreed, that the Eussian Government should " continue as heretofore to be security to the creditors for the whole " of the said loan, and should be charged with the administration of " the same ; the Governments of the King of the Netherlands and " of His Britannic Majesty remaining liable and bound to the Go- " vernment of His Imperial Majesty for the punctual discharge as " above of their respective proportions of the said charge ; and it " was thereby understood and agreed between the high contracting " parties, that the said payments on the part of the King of tlie " Netherlands, and of His Majesty as aforesaid, should cease and " determine, should the possession and sovereignty (which God " forbid) of the Belgio Provinces at any time pass or be severed " from the dominions of His Majesty the King of the Netherlands, " previous to the complete liquidation of the same; and it was also " understood and agreed between the high contracting parties, that " the payments on the part of the King of the Netherlands and of " His Majesty as aforesaid should not be interrupted in the event " (which God forbid) of a war breaking out between any of the three " high contracting parties ; the Government of His Majesty the " Emperor of all the Eussias being actually bound to its creditors by " a similar agreement : And whereas the Commons of the United " Kingdom have resolved that provision be made for enabling His " Majesty to defray the expenses which may be incurred in the " execution of the said Convention : May it therefore please your " Majesty that it may be enacted, and be it enacted by the King's " most Excellent Majesty, by and with the advice and consent of " the Lords spiritual and temporal, and Commons, in this present " Parliament assembled, and by the authority of the same, that the " Lord High Treasurer or the Commissioners of the Treasury of " Great Britain, or any three or more of them, for the time being " respectively, shall be and he and they is and are hereby empowered " from time to time, out of the Consolidated Fund of Great Britain, " to cause to be issued such sums of money as shall be required for the " payment of the interest on such part of the capital of the said Eussian " loan as is agreed to be borne by His Majesty as aforesaid, and also " for the payment of a sinking fund of one pound per centum, or not " exceeding three pounds per centum, as the case may be, on the " said part of the said capital, for the extinction of the same, as and " when the same may from time to time respectively become payable, " and so long as the same should be payable conformably to the tenor " of His Majesty's engagements, as specified iu the said Conventions APPENDIX V. 605 " respectively, and also such sums as may be required to pay and " satisfy all the expenses attending the execution of this Act. " II. That the said Lord High Treasurer, or Commissioners of the " Treasiiry for the time being, shall cause to be prepared, and shall " lay before both Houses of Parliament, within twenty days after the " commencement of every session, an account up to the 31st day of ■' December then next preceding, of the total sums which shall from " time to time have been issued and applied by virtue of this Act " for paying and satisfying the interest on the said part of the said " loan so agreed to be borne by His said Majesty, on all or any of " the said securities, and towards paying and satisfying the principal ' ' thereof (in case the principal of any of the said securities shall " then have been paid) and also for paying the expenses of carrying " this Act into execution and the sinking fund for the extinction of " the same ; and such account shall also specify how much of the " said part of the said loan has been discharged, and how much " remains to be discharged. An Act to enable His Majesty to carry into effect a Convention made between His said Majesty and the Emperor of all the Russias (o). [3rd August, 1832.] " Whereas, by a Convention made and signed at London on the " 16th day of November, in the year 1831, between His Majesty and " the Emperor of all the Eussias, His said Majesty and the said " Emperor of all the Russias, considering that the events which had " occurred in the United Kingdom of the Netherlands since the " year 1830, had rendered it necessary that the Courts of Great " Britain and Russia should examine the stipulations of their Con- " vention of the 19th day of May, 1815, as well as of the additional " article annexed thereto, considering that such examination had led " the two high contracting parties to the' conclusion that complete " agreement did not exist between the letter and spirit of that Con- " vention, when regarded in connection with the circumstances which " had attended the separation that had taken place between the two " principcd divisions of the United Kingdom of the Netherlands, but " that, on referring to the object of the above-mentioned Convention " of the 19<7i day of May, 1815, it appeared that that object was to " afford to Great Britain a guarantee that Russia would on all " questions concerning Belgium identify her policy ivith that which " the Court of London had deemed the best adapted for the mainte- " nance of a just balance of power in Europe, and on the other hand " to secure to Russia the payment of a portion of her old Dutch debt, " in consideration of the general arrangements of the Congress of (o) 2^3 fVm. ir. cap. 81. 606 APPENDIX V. " Vienna, to ivhich she had given her adhesion, arrangements which " remained in full force, their said Majesties, being desirous that the " same principles should continue to govern their relations to each " other, and that the special tie which the Convention of the \^th " day of May, 1815, had formed betiveen the two Courts should be " maintained, agreed upon and concluded the following articles, " among others ; that is to say, " Art. I. — In virtue of the considerations above specified, Hia " Britannic Majesty engages to recommend to his Parliament " to enable him to undertake to continue on his part the pay- " ments stipulated in the Convention of the 19th day of May, " 1815, according to the mode and until the completion of the " sum fixed for Great Britain in the said Convention : " Art. II. — In virtue of the same considerations, His Majesty the " Emperor of all the Eussias engages that if (which God " forbid) the arrangements agreed upon for the independence " and the neutrality of Belgium, and to the maintenance of " which the two high Powers are equally bound, should be " endangered by the course of events, he will not contract any " other engagement without a previous agreement with His " Britannic Majesty, and his formal assent : " And whereas the said Convention has been ratified, and the ratifi- " cations thereof were exchanged on the 21stday of June last: And " whereas by the stipulations of the said Convention of the 19th day " of May, in the year 1815, between His Majesty the King of the " Netherlands and His late Majesty the Emperor of all the Eussias, " to which His late Majesty King George III. agreed to be a party, " mentioned in the said recited Convention of the 16th day of No- " vember, 1831, His Majesty the King of the Netherlands, by the " first article thereof, engaged to take upon himself a part of the " capital and arrears of interest to the 1st day of January, 1816, of " the Eussian loan made in Holland through the intervention of the " House of Hope and Company in Amsterdam, to the amount of " twenty-five millions of florins Dutch currency, the annual interest " of which sum, together with an annual payment for the liquidation " of the same, as thereafter specified, should be borne by and become " a charge upon the kingdom of the Netherlands; and His Majesty " the King of the United Kingdom of Great Britain and Ireland " engaged on his part to recommend to his Parliament to enable " him to take upon himself an equal capital of the said Russian loan, " videlicet, twenty-five millions of florins Dutch currency, the annual " interest of which sum, together with an annual payment for the " liquidation of the same, as thereafter specified, should be borne by " and become a charge upon the Government of His Britannic " Majesty : And by the second article it was provided that the future " charge to which their said Belgic and Britannic Majesties should " be respectively liable in equal shares, on account of the said debt, APPENDIX V. 607 " was to consist of an annual interest of five per centum on the paid " capitals, each of twenty-five millions of florins, together with a " sinking fund of one per centum for the extinction of the same, the " said sinking fund being subject however to be increased, on the " demand of the Russian Government, to any annual sum not ex- • " ceeding three per centum, the same to be payable till the capital " of the said debt should be fully discharged, when the aforesaid " charge for interest and sinking fund should wholly cease to be " borne by their said Belgic and Britannic Majesties respectively ; " And by the third article their said Belgic and Britannic Majesties " respectively bound themselves, on or before the usual day or days " in each year on which the interest on the said debt should be due " and payable, to deposit with the agent of the Russian Government " in Holland their respective proportions of the said interest and " sinking fiind as above specified : Provided always, that previously " to the advance of each successive instalment so to be paid the said " agent should be authorised to furnish a certificate to each of the " said two high contracting parties, declaring that the preceding " instalment had been duly applied in discharge of the interest and " in reduction of the principal of the said debt, together with the " corresponding payments on account of the Russian Government " on that part of the debt which should remain a charge on the said " Government : And by the fourth article it was provided that the " Russian Government should continue as theretofore to be security " to the creditors for the whole of the said loan, and should be " charged with the administration of the same, the Governments of " the King of the Netherlands and of His Britannic Majesty remain- " ing liable and bound to the Government of His Imperial Majesty " each for the punctual discharge as above of the respective propor- " tions of the said charge : And by the fiflh article it was thereby " understood and agreed between the high contracting parties, that " the said payments on the part of their Majesties the King of the " Netherlands and the King of Great Britain as aforesaid should " cease and determine should the possession and sovereignty (which " God forbid) of the Belgic Provinces at any time pass or be severed " from the dominions of His Majesty the King of the Netherlands " previous to the complete liquidation of the same ; and it was also " understood and agreed between the high contracting parties, that " the payments on the part of their Majesties the King of the Nether- " lands and the King of Great Britain as aforesaid should not be " interrupted In the event (which God forbid) of a war breaking out " between any of the three high contracting parties, the Government " of His Majesty the Emperor of all the Russias being actually " bound to its creditors by a similar agreement : And whereas an " Act was passed in the fifty-fifth year of the reign of His late Majesty " King George III. for carrying into effect the said last-mentioned " Convention : And whereas it is expedient that His Majesty should 608 APPENDIX V. be enabled to carry into effect the said Convention of the 16th day of November, 1831: be it therefore enacted by the King's most Excellent Majesty, by and with the advice and consent of the Lords spiritual and temporal, and Commons, in this present Parliament assembled, and by the authority of the same, that it shall be law- ful for His Majesty, his heirs and successors, and they are hereby authorised, considering the circumstances of the separation between the two principal divisions of the United Kingdom of the Nether- lands, to continue the payments stipulated in the said Convention of the 19th day of May, 1815, according to the mode and until the completion of the sum fixed for Great Britain in the said last-men- tioned Convention, and to complete and carry into effect in all other respects the stipulations of the said last-mentioned Conven- tion, and of the said Convention of the 16th day of November, 1831 ; and all the powers given by the said recited Act to the Lord High Treasurer, or Commissioners of the Treasury, or any three or more of them, for enabling His Majesty to make the pay- ments required, and to defray the expenses which might be in- curred in the execution of the said Convention of the 19th day of May, 1815, and all the enactments in the said Act contained shall be and continue in force, and shall be extended and applied to the completion and carrying into effect the stipulations of the said Con- vention of the 19 th day of May, 1815, and of the said Convention of the 16th day of November, 1831. APPENDIX VI.— Page 127, Part VI., Chap. I. RIGHTS OF SOVEKEIGNS. DECISIONS IN THE FRENCH COURTS. Tribunal du Havre. (Oorrespondance particuliere.) Audiences des 10, 23 et 25 Mai. AFFAIRE DE ME BLANCHET, AVOCAT, CONTEE LE PEisiDENT DE LA R^PUBLIQUE d'hAITI (a). " A l'addience du 10, M^ Blanohet a repliqu^. Aprfes de nou- " veaux details sur I'importance et I'etendue de ses travaux, il con- " tinue ainsi : — " ' Vous avez ete pay^, m'a-t-on-dit ! II est vrai que la commis- " sion institute par le president Beyer a fait un savant calcul " d'^conomie politique, pour etablir que j'avais trop re9u, puisque (a) Gazette des Trihmaux, Slay 27, 1827. Num^ro 5-54. APPENDIX VI, 609 " la somme qui lui avait 6td payde avait ^t^ sup^rleure au traite- " ment des membrea du corps legislatif ; mais cette decision inspir^e " par le president Boyer est ridicule.' " Dans la consultation de M" Isambert, on a fait uu autre argu- " ment. Voyez I'injustice de M'= Blanchet ; il accuse le president " d'etre ingrat, de ne pas recompenser les travaux qu'il a demandes ; " et il a donn^ 10,000 francs pour I'infortune des hommes de " coulenr, sans qu'aucune dejnande lui ait 6te adress(5e. M^ Blan^ " cliet repond mmo liheralis nisi liberatus. M^ Isambert sait mieux " que personne que je n'ai pas i^te pay6 ; il en a la conviction. " (M^ Isambert fait un geste n^gatif.) M'' Blanchet lit alors un " passage d'une lettre de cet avocat du 10 Decembre 1826, oil il " est dit qu'il s'interposera pour que M" Blanchet soit traite hono- " rablement. Done a cette epoque M'= Isambert pensait que M« " Blanchet n'avait pas et^ conyenablement retribue. II est vrai " qu'il pent avoir deux consciences, I'une comme homme priye, " I'autre comme jurisoonsulte et homme public- " M<= Isambert se Ifeve et demande que M"' Blanchet soit tenu de '• lire la lettre toute entifere, afin qu'il n'en altere pas les dispositions, " comme il I'a fait pour les documens lua a I'audience du 3 Mai, " qu'il a positivement refus^ de communiquer. " M^ Blanchet lit la lettre ainsi con^ue : — " ' Mon cher confrere, — Je ne puis vous communiquer les pieces " que vous me demandez par votre billet d'hier ; elles ont ete desti- " nees au president seul et au ministre des aifaires etrangferes, ou " Ton poursuit I'aifair diplomatiquement. Elles ne m'appartiennent " pas, et ne doivent pas voir le jour. Si le conflit est 61eve, vous " aurez tous vos moyens de defense. " ' Je vous dirai seulement qu'on a ete prodigieusenjent etonne " que vous ayez appel^ le sieur Jean-Pierre Boyer deyant les Tri- " bunaux, tant comme pafticulier que comme prfeident d'un ^tat " souverain, pour un travail confidentiel que Ton dit vous avoir ete " confix sur les lieux, et que vous ayez obtenu d'un juge du Havre '' la permisision de ^isir des proprietes d'un gouvernement sur un " simple expose. " ' Je crains tellement le debat public pour la cause que nous " defendons tous, qu'en trouvant mal fondee, en la fornje, la de- •'' mande doijt voi;s avez saisi le Tribunal du H8.vre, j'^i d^sird un " ^rbitj-age. " 'Le president parait fort pique contre vous; vous Fetes contre " lui. Un d^bat de cette nature ne pent qu'gtre affligearjt, comme '' vous le disait M. le general Eoche, dans mon cabinet. " ' Mon vif desir est que vous soyez traits honorablement de vos " travaux. J'afparM, il y a longtemps, de ma mani^re de voir k ce " sujet, k M. D , notre ami commun. J'accueillerai avec le '* plus grand plaisir, et je m'empresserai d'appuyer de toijtea. nies VOL. II. E E 610 APPENDIX VI. " forces les demandes, qui auront pour but d'arriver k une conclu- " sion agreable aux deux parties.' " M» Blanchet arrive k la question de competence. II reproduit " et d^veloppe ses argumens pour prouver qu'il est n^ et qu'il est " reste Pran5ais. 11 serait Frangais quand meme il serait ne sur " le territoire d'Ha'iti, depuis la reconnaissance d'independance, et " quoique son pere ait et6 I'un des auteurs de la constitution, et Tun " des fondateurs de cette independance. La preuve que la France " I'a consider^ comme tel, c'est qu'elle Fa fait elever k ses frais, bien " que Haiti se fdt separe de la mfere-patrie. " M" Blanoliet se trouvait exclu comme blanc de la naturalite " Haitienne ; mais, a-t-on dit, n'etes-vous nas un homme de cou- " leur ? (6) " Quoiqti'il soit Evident qu'il n'est pas homme de couleur, M^ " Blanchet ne s'en defendrait pas s'il I'etait ; il a combattu lui-meme " ce pr^jug^ ; il cite une foule de citoyens recommandables qui sont " de sang meM : M. le g&eral Eoche, M. le docteur Foumier. II " en cite d'autres, auxquels il reconnatt un vrai talent; mais a " regard de ceux qui sont en Haiti, il s'abstiendra de dire leurs " noms, parceque ce serait les exposer a I'animadTersion du presi- " dent Boyer. " Au reste, quand une goutte imperceptible ou apparente de sang " Africain coulei-ait dans les veines du demandetu-, il n'en serait pas " moins Frangais, et en droit d'actionner le president. Mais il re- " pousse la qualification d'homme de couleur, parceque son acte de " naissanoe, du 21 pluviose an VI, n'en fait pas mention, comme le " prescrivaient les reglemens coloniaux. " ' On a,' ajoute M'' Blanchet, ' dans la consultation et a I'audience, " insiste sur ce que j'aurais re9u 2,500 gourdes (12,500 ft.) sur mes " travaux. Je n'en ai reju que 500. Les 2,000 gourdes de surplus " auront peut-etre et^ portees dans les comptes d'Haiti, et gardees " par le president Boyer pour se les approprier.' " M. le president observe que dans la consultation de M" Isam- " bert, il est dit que cette somme a ete payee sur la cassette du " president. " ' Dans ce cas,' repond M^ Blanchet, ' il ne pent se dispenser d'en " produire la quittance.' " M« Isambert demande a r^pondre sur les insinuations que M"" " Blanchet s'est permises centre lui k I'audience. Cette reponse est '' n^cessaire, parceque M'' Blanchet ne lit pas exactement les docu- " mens dont il fait usage. (6) "Quelques contestations se sont ^lev^es sur la r^alitiS de cette interruption, rapport^e par la Gazette des Trihunaux : mais tous les doutes ont du cesser depuis que M' Isambert a publiquement declare que c'^tait lui qui I'avait adressiSe a M° Blanchet. Ainsli la Gaxtte des Trihunaux a &t6, selon son usage, parfaitement exacte." APPENDIX VI. 611 " M. le president. — ' Le Tribunal verrait avec regret que deux " hommes honorables se livrassent k I'audience a des personnalit^s ; " peut-etre M" Blanchet, plaidant dans sa propre cause, a pu se " servir de quelques expressions qu'il edt pu adoucir ; mais le Tri- '' bunal n'a rien entendu qui n^cessitat une reponse.' " M« Isambert. — ' Si telle est I'opinion du Tribunal, n'^tant ici " que conseU, je ne prendrai pas la parole. J'attendrai que M'= " Blanchet ait public textueUement le plaidoyer d'aujourd'hui ; alors " je pourrai r^pondre a ce qui parattra I'exiger, en regrettant que " ces explications ne soient plus de nature k se passer entre nos " amis communs.' " A I'audience du 23, M. Lizot, procru-eur du Eoi, a porte la " parole. " Ce magistrat, aprfes avoir retrace en peu de mots les faits de la " cause, se hate d'aborder les hautes et importantes questions qu'elle " pr^sente k r^soudre. II rappeUe que la republique d'Haiti oppose " k la demande de M^ Blanchet, 1" I'incompetence des Tribunaux "Fran^ais; 2° Tinsaisissabilit^ des marchandises arretees; et que " de plus elle reclame la suppression des eorits du proces comme " irreverens, injurieux, difFamatoires, soit envers elle, soit envers " son president. " II pense que par cette derniere pretention la republique ne " s'est point rendue irrecevable k proposer rinoomp^tence, parce- " que les deux demandes sont d'une nature entierement diiF^rente ; " qu'elles peuvent subsister ensemble, parceque FeiFet de I'une n'a " aucun rapport avec I'efFet que I'autre doit produire ; que d'ailleurs " I'abandon de ses moyens ne se presume pas. " Arrivant a la question d'incomp^tence, il i^tablit que M« Blan- " chet est naturel Fran^ais, et qu'en cette quality il pent se preva- " loir des dispositions de I'art. 14 du Code Civil ; il convient que " le demandeur ne pent se dire Francais, par cela seul qu'il est ni " Fran9ais a Saint-Domingue, avant I'emancipation ; car il resul- " terait de ce systeme que tous les habitans de Saint-Domingue, " nes avant I'ordonnance royale, seraient encore Fran9ais. II con- " vieut encore que I'indfependance a le m^me effet que la conquete ; " que, comme elle, elle soumet au nouvel 6tat les sujets de I'ancien. " ' Mais,' ajoute M. le procureur du Eoi, ' la mtoopole, dont le " nouvel ^tat se detache, ne perd que ce que la puissance nouvelle " a voulu acqu6rir ou a reellement acquis. Ce qu'elle rejette ne " subit ni changement ni incorporation. Qu'a done acquis Haiti, " colonie Fran9aise, depuis des siecles ? Lors de la revolution de " 1791, les noirs ne s'arret^rent dans leur fureur que lorsqu'ils " n'eurent plus de maitres a massacrer ou a proscrire. Ceux qui " echapp^rent vinrent en France, ou cherchferent im asile sur d'au- " tres terres hospitalieres. Ces Europ^ens, qui ne pouvaient rester " sans danger sur le sol de Saint-Domingue, deja teint du sang de " leurs frferes, dans des temps plus calmes, furent encore declares R T! 2 612 APPENDIX VI. " incapables de toute fonction publique. Haiti les a toujours rejetes " de son sein ; ila n'ont pas iti un seul instant soumia k la domination " Strangers. Fran9ais quand il s'agissait de les proscrire, ils sent " encore Fran9ais quand il s'agit de les d^fendre. " 'M^ Blanchct revint en France, en 1800, avec son pere; il iz " fixit ses etudes a Paris, oil il a 6t^ inscrit sur le tableau des avocats. " II est done Fran9ais comme tous les anciens colons expuls^s. En " vain, dirait-on, tardivement d'ailleurs, qu'il est d'origine Africaine ; " cette pr(^tention invraisemblable devrait etre prouvee autrement " que par des assertions. " ' Fran5ais a son arrivee en Haiti, M'' Blanchet n'a point perdu " sa quality par la naturalisation acquise en pays (Stranger. La " naturalisation est un fait, qui ne se peut operer que d'apres les " lois du pajs dont on doit deyenir sujet. Or, M= Blanchet n'a " rempli ni pu remplir les conditions imposees par la constitution " Haitienne ; il n'a ni la couleur ni la residence voulue ; il est done " encore Franfais. " ' Mais il a accepte des fonctions h, I'etranger ! Sans doute ; " mais sont-elles du nombre de celles qui font perdre la quality de " Fran9ais ? S'est-il expose a contrarier les interSts de son pays ? " Ces fonctions sont-elles incompatibles avec les devoirs de fidelite " envers la patrie ? II fut defenseur public, ce qui equivaut a la " qualite d'avocat en France ; mais nuUe loi representee ne dit que " pour etre avocat a Haiti il faiUe etre Haitien. Le ministere " public pense que pour appliquer le 2^ § de I'art. 17 du Code il " faut que le Frangais ait rempli une sorte de magistrature, que cet " article a un but politique, et il tire argument d'un avis du conseil " d'etat, du 21 Janvier 1812. " ' On dit encore : " II a fixe un etablissement sans esprit de re- " tour." Mais, s'il eu eut ete ainsi, s'il eftt voulu fixer son existence " en Haiti, n'aurait-il pas accepte les hantes fonctions, les faveurs " qui lui etaient ofFertes ? Par sa jeunesse et ses talens il eftt ete " entrain^ dans la carrifere brillante qui lui ^tait ouverte. Son refus " proiivait I'esprit de retour ; il voulait revenir en France, ou il " avait laiss^ des amis, des souvenirs honorables, ou on le considere " encore comme Fran^ais, inscrit sur le tableau des avocats de ■" Paris, dans cette France que les etrangers visitent avec envie et ne " quittent qu'a regret, et qu'un Fran9ais n'abandonne jamais pour " patrie ! " ' La question la plus delicate de ce proces,' continue le minis- " tere public, ' est celle de savoir si la r^publique Haitienne est, <' dans I'espece, justiciable des Tribnnaux de la France. Habitu^, " comme Fran9ais, a respecter les actes de la rolonte royale, comme " magistrat, k les faire respecter, vous n'attendez pas de nous, " Messieurs, que nous r^voquions un seal instant en doute I'inde- " pendance du gouvernement d'Haiti. Nous examinerons, en droit " rigoureux, si un ^tat etranger peut, dans certains cas , subir la APPENDIX VI. 613 " juridiction de nos Tribunaux.' Le magistrat etablit une distinction " lumineuse entre le gouvernement qui agit comme d^positaire de " la puissance publique et dans I'exercice de cette puissance, et le " gouvernement agissant dans I'exercice de son intcret priv6, comme " corporation, comme persoiine morale. " ' Dans I'exercice de son droit public exterieur avec d'autres " nations, de syn droit public interieur avec ses sujets, vouloir tracer '' des regies a un etat qui use de ses droits, serait rompre I'egalit^, '' violer son independance ; mais lorsqu'il forme des obligations " civiles, lorsqu'il se lie, lorsqu'il s' engage comme lea particuliers " dans un intcret purement prive, c'est alors qu'il devient individu " soumis aux memes lois. Or, I'art. 14 du Code Civil est positif; " s'il est vrai de dire que les gouvernemens peuvent etre dans cer- " tains cas, consideres comme personne morale, il doit itre applique, " dans toute sa rigueur, sans examiner si la disposition legislative " regie ou non le droit des gens ou le droit civil. En France, I'etat " est soumis a la j uridiction des Tribunaux quand il s'agit de r^gler " ses interets prives ; il est assimil6 alors au simple partioulier. " Aussi a-t-il fallu une loi speciale pour le dispenser de la caution " exigee dans Fart. 2185 du Code Civil. " ' En vain, lorsqu'il s'agit d'inter^ts prives, on objecterait les " droits de souverainete, d'ind^pendance des nations, parceque oes " droits ne sont point compromis ; ils n'existent pour les gouverne- " mens qu'en tant qu'ils agissent dans I'exercice de leur puissance " publique, qui seule ne pent se soumeftre a des maitres ; mais ce " principe est sans consequence dans I'obligation privee de sa nature. '' Aussi Kluber dit-il que c'est comme nation que les gouvernemens " sont hors la juridiction des Tribunaux, parce qu'alors ils rentrent " dans I'etat de nature. " ' Lorsque la republique d'Haiti traduit des Fran9ais devant les " Tribunaux, sans contredit on pent exiger d'elle la caution, judi- " catum solvi (art. 16, Code Civil), uniquement parceque ce mot " etranger s'entend de tout demandeur qui n'est pas Eran^ais, et " dans ce cas, nuUe atteinte ne serait port^e ni a sa dignitd, ni a son " independance, parce qu'alors elle n'agirait point dans I'exercice de " sa puissance publique. " ' L' objection tiree de ce que, lors de la discussion du Code, on " retrancba un article relatif aux ambassadeurs, fortifie la distinction " qui doit dominer cette importante matiere, en ce que I'ambassadeur, " repr&entant sa nation dans I'exercice de sa puissance publiqiie, ne " pourrait, sans violation du principe de I'egaliti^ et de I'indepen- " dance, 6tre soumis k la juridiction privee.' " Aprfes avoir pose cette base fondamentale de sa discussion, le " ministfere publique examine les diverses objections faites par la " republique, objections dont il trouve la solution par voie de " consequence, et r&umant ses principes avec force et concision, il " conclut encore sur cette seconde question en faveur de M" Blancliet. 614 APPENDIX VI. " Une derniere question se pr^sente, c'est celle de savoir si M* " Blanohet a pu saisir-arreter les marchandises de la r^publique " d'Haiti. " Le ministere public se demande qui les arait empreintes du " sceau de I'insaisiasabilit^ ? Ce n'est point I'ordonnance d'eman- " cipaticn ; il n'existe et on n'invoque auoun traite qui les excepte " du droit commun ; elles sont alors, comme propriety ordinaire, " regies, quant a la saisissabilite, par les art. 557, 558 du Code de " procedure. II se peut que dans I'intention de la republique elles " eussent une destination certaine. Mais ou en est la preuve legale " pour les tiers qui ne voient et ne peuvent voir que le proprietaire " actuellement saisi ? Cette volonti, d'ailleurs, peut changer, et on " ne peut dire que de plein droit toutes les proprietes Haitiennes, " sur le sol Fran9ais, soient destinees au paiementdeladettedeslSO " millions. " ' Les fonds publics Frangais sont exceptes des rfegles ordinaires, " il est vrai, mais les exceptions sont de droit etroit ; il a meme " fallu une loi sp^ciale pour deroger au droit commun, et il n'existe, " en France, aucune loi qui declare insaisissables les marcbandises " d'Haiti.' " Quant a la question de suppression d'ecrits, qui a iti convertie " en une demande en reserve, le ministere pubKc pense qu'U faut " surseoir a statuer jusqu'a la discussion du fond, parce qu'alors, " seulement, on pourra juger du merite des faits allegues dans la " demande. " Apres ces conclusions, le defenseur de la republique a produit " la petition de M* Blanchet pour 6tre nomme defenseur public " a Haiti, petition dans laquelle il reconnait qu'il revient dans " son pays. " M'' Blanchet repond que cette petition ne change rien aux " principes du droit que la loi Fran^aise lui confere, qu'elle n'est " d'aucune importance, et que les adversaires la connaissent depuis " longtemps. " A I'audience du 25, le Tribunal a prononce son jugement par " lequel il considfere M'' Blanchet comme Fran^ais d'origine, ayant " conserve cette qualite ; mais declare les Tribunaux Fran9ais in- " comp^tens, parceque I'art. 14 du Code ne regit que les rapports " des particuliers entre eux, et sous ce point de vue meme contient " une exception au droit commun, exception qui doit etre restreinte " dans les termes rigoureux de la loi. " Eelativement aux reserves, le Tribunal ayant ^gard a la position " oil se trouvait M'' Blanchet et aux injures k lui prodiguees dans " les journaux, et meme dans les journaux d'Haiti, a d^bout^ le " president de la republique de sa demande ; mais il a condamne " M« Blanchet aux d^pens." APPENDIX VI. 615 (Prom the Gazette des Tribunaux, May 3, 1828. Numero 855.) Tribunal de /'■" Instance (I'" Chambre). (Pr^sidence de M. Moreau.) Audience du 2 Mai. AFFAIRE DE LA MAISON J3ALGDEEIE, DE BORDEAUX, CONTRE LE GOUVERNEMENT ESPAGNOL (c). AFFAIRE DE M.M. TERNAUX, GANDOLPHE ET COMPAGNIE, GONTEE LA R^PUBLIQUE d'hAITI {d). " M. LE President Moreau a prononce le jugement suivant dans ' I'afFaire Balguerie : — " ' Attendu que le droit de juridiction est une emanation de la ' souverainete ; " ' Attendu que I'art. 14 du Code Civil ne peut-etre appliqu^ k un ' souverain Stranger, d'abord parce qu'il ne dispose que pour les ' obligations contractees envers un rran9ais par un individu ' etranger, et encore parce qu'on ne pourrait l'6tendre aux souve- ' rains etrangers sans porter atteinte au droit qu'a tout gouvernement ' independant d'etre seul juge de ses actes; " ' Attendu, en fait, que 1' opposition form^e par la maison Bal- ' guerie entre les mains d'Aguado, a pour cause I'ex^cution d'un ' traits passe entre S.M. catholique en cette maison pour I'affr^te- ' ment d'un certain nombre de navires destines a transporter les troupes du gouvernement espagnol ; " ' Qu'un pareil traite est ividemment un acte d'administration ' publique, et ne pent, sous aucun rapport, etre consid^r^ comme contrat prive ; " ' Attendu, d'un autre cot^, que les deniers sur lesquels I'opposi- tion a ite formde, sont des deniers publics destines au paiement de I'emprunt royal espagnol, et qui ne pourraient etre saisis sans entraver la marche de ce gouvernement ; " ' Qu'admettre une personne priv^e a saisir en France les fonds d'un gouvernement etranger, serait violer les prinoipes sacres du droit des nations, et s'exposer ainsi k des represailles funestes ; " ' Attendu, enfin, que les jugemens des Tribunaux Fran9ais tent sans autorite hors du royaume, le gouvernement espagnol ne pourrait pas ^tre forc^ de s'y soumettre, et par consequent de reconnaitre la validity pu paiement qui serait fait par Aguado ; " ' D'ou il suit que le Tribunal est incompetent. " ' Fait main lev^e de I'opposition,' etc." (c) Gazette des Trihmma; 10th and 26th April. (cl) lb., 26th April. 610 APPENDIX vr. I'ribuiial Cicil de la Seine {I" Chamhrc). (Trt^eidence de M. de Belleyme.) Audience dtt IG Avril. S. A. M^niMET-ALl, YICE-EOI d'^GYPTB, ET JI. SOLON, AVOCAT. FONDATION d'uNE £cOLE D'ADMINISTRATION PUBLIQUE EN j'OYPTE. DEMANDE EN 100,000 FKANCS DE DOMMAGES-INTiRflTS («). " Cette affaire, qui promettait dea revelations sur le gouvernenient " du vioe-roi et sur les relations de la France avec I'Egypte, avait " attire a Taudience une grands affluence de curieux. " S. A. Mehemet-Ali, vioe-roi d'Egypto, et;iit representee par " M. Odllon Barrot, qui, comme on sait, a fait r^cemment un '• voyage en Orient, et qui mieux que personne, en sa qualite de " fi-ere de notre consul-general en Egypte, pouvait donner au " Tribunal des expKcaticns sur le veritable etat des choses en " Egypte. " Voici dans quelles circonstances le vice-roi d Egypte avait \ se " d^fendre devant le Tribunal de la Seine centre une deniande en " 100,000 francs de donimages-interets : — " IM. Solon, dont le nom dtait d"un heureux augure pour donner " a I'Egypte des le9ons d'administration et de civilisation, avait ete " clioisi par I'intermediaire de M. Macarel, conseiller d'Etat, et " d"Artim-Bey, secretaire de S. A. le pacha d'Egypte, pour aller '' fonder au Cairo une eoole d'administi-ation publique. II etait dit " que M. Solon resterait pendant liuit ans au service du vice-roi. " 11 devait recevoir 15,000 francs de traitement pai- an et un loge- " ment digne de sa mission et dans le voisinage de Fccule. Au " mois d'aoflt 1845, M. Stolon, ii la suite de quelques ditiicultcs avec ' le vice-roi, quitta I'Egj'pte et revint en France. II a pretendu " que le vice-roi lui avait signifie un congd sans motif, et qu'il avait " dfl ceder fi la toute-puissance du pacha. De retoiu: en France, JI. " Solon a fait pratiquer des s;iisies-arrets entre les mains de deux " negocians de INIarseille, sur les valeurs et marchandises qu'its pou- " vaient avoir pour le compte du gouvernement Egyptien. Depuis, " ces saisies-arrets ont ^te denonodes au gouvernement Egyptien " en la personne d'Artim-Bey, representant et mandatairedu pacha. " De plus, ]\I. Solon a fait assigner le gouvernement Egyptien de- " vant le Tribunal Civil de la Seine, poxu- le faire condamner h, lui " payer 100,000 francs de dommages-inter^ts, tant pour six anuses " de traitement que pour frais de voyage en Egypte et de retour en '' Prance. Un jugement par defaut dont nous a\'ons rendu compte, " Fan dernier, a accucilli la demande de M. Solon. ((■) (uae/lc rfi'S Tribtomiij; May 3. 1828. Ximioiv 80o. APPENDIX VI. 617 " S. A. h'. vice-roi a form6 opposition au jugement I'enclu centre " lui par le Tribunal de la Seine. Aujourd'hui, ii pr^tendait que " le Tribunal de la Seine etaifc incompetent. " M. Odilon Barrot, avocat de S. A. M^hemet-Ali, vice-roi ■' d'Egypte, s'exprime ainsi : — " ' C'est un gouvernement Stranger qui est assigne devant vous, " et qui Test pour une action personneUe, a raison d'un aete es- " sentiellement gouvei'nemental. Poser ainsi la questionj c'est " assez vous dire que le debat est hors du droit civil ordinaire, et " qu'il a son si^ge dans le droit des gens. 11 s'agit, en efFet, de " savoir si on peut ttaduire un gouvernement etranger devant les " Tribunaux Pranjais pour un acte de la soiiverainet^. L'inde- " pendance des Etats, les conditions de la souverainetfe, les principes " incontestes du droit des gens, ne permettent pas qu'on soutienne " d'aussi etranges principes. Aucune discussion n'est possible a " oet egard. Tons les auteurs qui se sont occup& du droit des " gens, Montesquieu, Vatel, Puffendorf, tous ont consaor4 le prili- " cipe de l'ind(5pendance des gouvememens, et soutenu que la juri- " diction d'un etat ne pouvait appr^oier les actes d'un gouvernement " etranger. La juridiction deooule de la souverainet^. Pour que " les Tribunaux Eran^ais fussent comp(5tens, il faudrait admettre " que la juridiction existe ind^pendamment de la souverainet^. A " cet ^gard, les principes sont si ^videns que le vice-roi ne pourrait " accepter pour juge un Tribunal de France sans abdiquer sa sou- " verainete. " ' Je vais vous exposer rapidement les faits qui ont donn6 nais- " sance au proces actuel. " ' M. Solon, avocat, ancien conseiller de prefecture a Montau- " ban, a accept^ la mission d'aller au Cairo, en Egypte, en quality " de professeur d'administration publique ; M. Solon est entre au " sei-vice du gouvernement Egyptien avec de grands avantages ma- " t^riels. II devait recevoir 15,000 ft. par an. De plus, M. Solon " avait au Caire tme vaste maison k sa disposition, et indipendam- " ment de tous les avantages que la munificence iclairie du pacha " sait si bien prodiguer, M. Solon avait a remplir en Egypte une " mission glorieuse et digne de tenter la plus noble ambition, d'ex- " citer les sentimens les plus ^Mves d'un grand coeur, les pens^es " les plus vastes d'un esprit Eminent. Si le vice-roi a arrache " I'figypte par la force de sa volenti et I'^nergie de son gouverne- " ment a I'anarcliie militaire, s'il a pu asseoir dans ce pays une se- " curite telle qu'une femme peut traverser le desert et faire sans " danger le voyage de la Palestine, s'il a r^ussi au milieu des con- " flits Europeens k assurer sa puissance et a fonder une dynastie, il " y avait une chose qui n'^tait au pouvoir ni de sa force ni de son " g&ie, — c'^tait d'improviser et de creer des hommes ^claires et " capables par leurs lumieres de conduire I'Egypte en la soutenant '' dans les voies de la civilisation oil il la faisait entrer. Voilu 618 APPENDIX VI. " pourquoi M^hemet-Ali s'est adresse a la France, a laquelle ap- " partieanent toutes sea sympathies, et ou il envoie des &.hvea " destines un jour a concourir aussi k I'osuvre glorieuse qu'il se " propose. " ' M. Maoarel, que le Tribunal connait et que nous honorons " tous, avait eti charg6 par Artim-Bej, le secretaire du vice-roi, de " cherclier un homme digne de cette mission. M. Macarel choisit " M. Solon. M. Solon ne pouvait ambitionner un plus noble role " que celui qui lui 6tait offert. Preparer par I'enseignement un " peuple entier k la civilisation, transporter dans I'Orient, en in- " struisant les jeunes Egyptiens qui devaient plus tard regir les " destinees de leur pays, les idees de la France, la civilisation de " rOcoident, o'etait la plus belle et la plus sainte mission. " ' i.v'uand on salt pour quels motifs futiles, pour quelles causes " subalternes M. Solon a renonce a ce sacerdoce, on le regrette " pour lui, pour sa destinee, pour sa gloire. M. Solon a aban- " donne I'Egypte et renonce k sa mission, parceque le vice-roi I'a " prie de quitter le palais qu'il habitait pour le ceder au cherif de la " Mecque, au chef de la religion musulmane, que le sultan traite " d'egal a egal. Le vice-roi a offert a M. Solon de venir habiter le " palais qu'occupait le ministre des afBaires etrangeres. Ce n'etait " pas assurement une demeure indigne de M. Solon. Cependant il " a resiste a tout, — sommations des ministres, invitations du vice-roi. " Seulement Mehemet-Ali a dii alors lui laisser cette alternative, ou '' de quitter le palais ou de quitter I'Egypte. M. Solon a prefere " quitter I'figypte. " ' M. Solon a insinue qu'il avait et^ renvoye du Cairo parce qu'il " y professait en plein Orient des doctrines qui etaient plus ou " moins en harmonie avec les regies qui dominent le gouvernement " Egyptien. Alors meme que I'insinuation de 51. Solon serait ex- " acte, le Tribunal Fran9ais aurait-il de droit d'apprecier cet acta " du gouvernement de ]\Ieh6met-Ali. II serait assez etrange de " voir faire une enquete ordonnee par un Tribunal Fran9ais pour " savoir de quelle fajon on enseigne au Cairo et en Egypte I'ad- " ministration publique. II sufEt de poser cette bypotbese pour " faire ressortir combien il est exorbitant de faire juger par un " Tribunal Franjais le service d'un fonctionnaire qui s'est soumis a " un gouvernement Stranger. " ' En resum^, je vous ai ddmontrd que le Tribunal etait incom- " patent sous deux rapports, la qualite de la partie assignee et la " natiire de I'acte soumis a votre appreciation. Quelle est la qualite " de la partie assignee? C'est un gouvernement etranger qui est " assigne devant vous directement pour un acte administratif, pour " avoir destitue un fonctionnaire, un agent de son autorit^. " ' Quelle est ,1a nature de I'acte defer^ a votre justice ? C'est " un acte d'un gouvernement etranger. En vertu do quelle loi, M. Solon peut-il fonder son action {( ( APPENDIX VI. 619 " centre le gouvernement Egyptien ? En vertu de Tarticle 14 du " Code Civil ? Mais il s'agit dans cet article d'^trangers r^sidens, " il ne s'agit pas d'un gouvernement Stranger. " ' Sous le double rapport de la qualite de la partie assignee et " de la nature de Facte, I'incompetence du Tribunal est, je crois, " demontree.' " M. Solon presente sa defense en ces termes : — " ' La presence de mon contradicteur me place dans un singulier " embarras. Comment pourrai-je m'expliquer sur sa plaidoirie en " presence de rapports si bienveillana et si confidentiels qui m'ont " attache a M. le consul-gen&al de France (M. Adolphe Barrot) ? " Oh ! oui, sans doute, on a eu raison de le dire, la cause est grave, " car si elle interesse I'Egypte et les gouvememens etrangers, elle " interesse bien davantage encore I'independance du pays et " I'interet d'un grand nombre de nos compatriotes. Que le Tri- " bunal veuille done songer aussi a la cause de ces Fran^ais et lea " defendre centre un d^ni de justice aussi caract^ris^ que celui " qu'on veut lui faire consacrer. " ' Je suis parti en 184-i pour I'Egypte, ajoutant foi a la repu- " tation si extraordinairement tisurp^e du pacha. J'acceptai la " mission grande, nationale et philanthropique qui m'^tait offerte. " Je ne fis aucune difficult^ sur les conditions, et je partis apres " avoir obtenu une ordonnance royale qui m'autorisait a exteuter " le contrat que je venais de former avec M^hemet-Ali. Arrive " en Egypte, je fus surpris du singulier aooueil qui me fut fait : on " park hautement de mystification, et il n'y eut pas une seule voix " qui voulut prendre au serieux le contrat qui m'amenait en Egypte. " Moi qui, de bonne foi, venais pour former des hommes a la con- " naissance du droit administratif, je proposal de me charger de " quelques jeunes gens qui seraient plus tard places dans les mi- " nisteres. Tout me fut aocorde. II en coiitait peu, et d'ailleurs " des r&erves etaient faites pour I'avenir, reserves qui devaient em- " pScher le succes de mes soins. Bientot arriva I'epoque ou les " eleves qu'on m'avait confies devaient etre examines, et c'est alors " que le pacha ne sut plus deguiser sa penste ; mes eleves furent " admirables. L'examen fut brillant, trop brillant, et les sujets " payerent oher les ^loges qui leur furent prodigues. Quant a " moi, je fus vivement interpelle par le secretaire du pacha, qui me " dit que le pacha n'entendait pas ainsi I'administration publique que " j'^tais charg^ d'enseigner, et que j'aurais du me borner a donner " k mes Aleves quelques notions sur les successions. " ' Les successions, grand Dieu ! repondis-je au secretaire du " pacha, mais elles sont r(5gl(^es par le Goran, et tout infidele qui se " permet d'expliquer les saintes ^critures de I'lslamisme m(5rite la " mort. " Ah ! c'est juste ! " me dit mon interloouteur. Telle fut " ]a seule reponse qui me fut faite. Je me trompe. On me fit une " reponse plus categorique. Mes jeunes gens furent sacrifies. On 620 APPENDIX VI. " leur refusa toute espece de grades, ot ils durent deplorer aveo moi " les tristes consequences de mes enseignemens. " ' Des ce moment s'accomplissait cette prediction qu'on trouve " consignee dans un ouvrage public r^cemment par M. Schoelclier, " sous le titre de L'lSgypte en 1845. " ' On lit dans cet ouvrage, page 61, chapitre VI : — " ' " II y a trois ou quatre ans a peine, Mehemet-Ali a fait venir de France un jurisconsulte, M. Solon, pour etablir au Caire un cours'de droit administratif. C'est encore une de ces jongleries sur lesquelles il comte pour tromper I'Europe. A quoi servirait un cours de droit administi-atif dans ce pays ou regne le bon plaisir, et auquel on ne vent pas donner d'administration parce qvr'on veut conserver I'arbitraire ? Le vice-roi a confie cinq eleves a M. Solon, et au bout de la premiere annee il a voula lui en- lever le meilleur, pour en faire, quoi? — le chef d'une buauderie. M. Solon parait bomme a ne pas conserver de role dans la grande comedie Egyptienne. II exigera probablement 1 'organisation de- finitive de son ecole avec ses consequences serieuses, et comme on ne voudra pas lui accorder, il y a lieu de croire que la toile tombera avant peu sur I'intermede qu'on lui avait confie." " ' II me fut impossible,' dit M. Solon, 'de ne pas voir ou on vou- lait en venir. Cependant je tins bon. Je demandait de nou- veaux eleves ; on m'en donna qui savaient a peine epeler les mots. lis me demanderent de les faire nommer lieutenans, en declarant qu'ils partiraient tons si je ne pouvais leur obtenir de grades. La condition etait rigoureuse, impossible ; je ne pouvais m'y soumettre, et je vis partir tons mes uouveaux eleves, qui furent cliercber leur grade ailleurs. Cependant, ma resignation fatiguait le pacha, et il me fit encore donner six eleves qui me faisaient aussi des conditions. Je ne pouvais plus y tenir, et pour faire cesser cet etat de choses reellement insupportable, je fis un rapport qui etait d'ailleurs obligatoire a Mehemet-Ali. Je lui demandai, avec tons les %ards possibles, Torganisation de Fon ecole. Je passai sous silence tons mes justes griets. Je cou- sentis a ne pas parler de faits de la plus haute gravite; je voulais rendre impossible tout mauvais proced(^. " ' Je connaissais bien mal les hommes auxquels j'avais affaire. Mes egards furent pris pour de la faiblesse. On repoussa toute demande d'organisation. On se niit a me tourmenter pour mon logement, qu'on voulut nie iiiire quitter malgve les promesses for- melles qui m'avaient ete faites. J'ecrivis que j'etais pret a quitter ce logement ; je me bornai a demander quelques jours. Je re9us alors une lettre d'Artim -Bey |qui contenait la phrase la plus in- convenante. Enfin, apres une correspondance que je recrettc de ne pouvoir faire connaitre aujourd'hui au Tribunal, je re9us un ordre de depart. J'etais reniercie. Je fus chez le consul-general de France, M. Barrot, fr6rc de mon honorable adversaire; je lui APPENDIX VI. 621 " demandai son appui pour feire ex6cuter mon contrat : tout fut " inutile. J'avais affaire k un prince et k des conseillers qui ne com- " prenuent pas la justice. Je ne ]5us meme obtenir que des arbitres " fussent charges de prononcer sur ma reclamation. " ' C'est alors que je fis donner assignation a Mi^hemet-Ali devant " M. le consul-general de France pour assister au depot de mon " contrat, et je partis pour la France. Arrive k Marseille, et por- " teur de mon contrat revetu de la formule executoire, je fis saisir " les marchandises du pacha dans I'entrepot de Marseille. J'ai de- " mande plus tard au Tribunal de la Seine la validity de la saisie. " Le Tribunal, jugeant par defaut, il est vrai, a accueilli ma de- " mande, et c'est sur I'opposition du pacha d'jEgypte que le Tri- " bunal est appeie a statuer.' " M. Solon s'attache a repousser I'incompetence soutenue au nom " du pacha d'JEgypte. ' Je conviens,' dit-il, ' qu'on ne pent pas faire " une saisie dans le domicile d'un ambassadeur, ni sur un prince " en passage sur le territoire national. Mais si un prince fait des " aifaires en France, s'il a sur notre territoire des marchandises, des " meubles, etc., tons ces objets sont saislssables.' M. Solon cite " Martens, Vatel, Kluber, Weathon, etc. " ' De quoi s'agit-il ? D'une saisie faite au prejudice de Me- " hemet-Ali, k Marseille ; au prejudice du pacha faisant le com- " merce, ayant ses courtiers, ses consignataires, et etant sans nul " doute soumis a ce titre aux lois de douanes. Pourquol done,' dit " M. Solon, ' ne pourrais-je pas de mime exercer des poursuites sur " les denrees, sur les marchandises qu'il a en France, ^ raison de " son negoce, car il est incontestable que Mehemet-Ali, tout en " etant pacha en Egypte, est en mime temps n^gociant. " ' Maintenant, Messieurs, permettez-moi d'arreter Totre attention " sur un point assez d^licat de cette affaire. Vous savez que Me- " h^met-Ali n'est plus un souverain comme il I'a ^te. Le traits de " 1840 I'a soumis k la Porte, I'a forc^ de reconnaitre la souverainet^ " du sultan. S'il est souverain encore, ce n'est qu'un souverain " sous-ordre ; c'est pourquoi il s'appelle le vice-roi. II n'a pas, il " ne peut avoir le privilege de la souverainet^ ; il cherche bien a " I'avoir tout entifere, mais ce n'est la qu'une pretention. On se " rajipelle la courtoisie dont Ibrahim-Pacha, le fils de Mehemet- " Ali, vice-roi d'Egypte, a ete I'objet dans son recent voyage en " France et son sejour k Paris. Quand Ibrahim fut re9u aux " Tuileries, il y fut presentd par I'ambassadeur Ottoman. " ' Je rappellerai encore que le droit des gens et le droit inter- '' national qui r^glent les relations entre les puissances chretiennes, " est tout a fait different de celui qui r^git les rapports de I'Europe " avec les peuples d'Orient. " ' Le droit international a ete fonde par les puissances chretiennes, " a I'epoque des croisades et centre les Musulmans. Quant k " ceux-cj ils ont des principes tellement incompatibles avec ceux de 622 APPENDIX vr. " I'Europe, que tous les auteurs sont d'accord pour reconnaitre ces " differences essentiellea qui iie permettent pas aux chr^tiens de se " laisser juger par les magistrats Musulmans. On reconnait bien " que I'empire Ottoman clierche a rentrer dans notre droit inter- " national, mais jusqu'ici ce rapprochement est loin d'etre complet.' " M. Solon cite Weathon, Histoire du Droit des Gens, et Schmalz, " Du Droit des Gens, ainsi que les trait^s de 1542 et 1740, qui ne " permettent pas aux magistrats Musulmans de juger un chretien " s'il n'est assiste d'un representant du consulat. " ' Jele demande, ' dit M. Solon, 'quel serait done le juge que me " donnerait mon honorable contradicteur ? Des juges Musulmans, " le gouvernement du pacha, je n'en veux pas, car ilsne connaissent " d'autres principes que celui-ci : le gouvernement, toujoiirs le gou- " vernement, tout vient de lui et tout revient a lui ! " ' Sachez-le done, Messieurs, le gouvernement de Meh^met-Ali " ne doit jamais rien perdre. C'est en vertu de ce droit odieux " qu'au retour de Farmee de Syrie on faisait payer aux soldats qui " avaient 6te blesses et faits prisonniers les armes que I'ennemi leur " avait enlev^es. C'est ainsi qu'on osait faire payer a un phar- " macien les onguens et compresses employees pour panser les " bless&, parce qti'il n'avait pas retire de quittances; c'est ainsi " qu'on faisait payer au frere les impositions du frere absent ; c'est " ainsi qu'un de nos compatriotes, M. Gregoire, ayant ete indigne- " ment batonn^, le ministre coupable, qui s'etait permis cette in • " famie, fut rijcompensfe au lieu d'etre puni : le coupable fut promu a " des fonctions importantes dans le ministere des finances. C'est ce " memo fait qui a determine le depart de M. de Lavalette, notre " consul-general, et, par suite, la nomination de M. Adolplie " Barrot. " ' Oh ! qu'il est a deplorer que mon contradicteur n'ait connu " I'Egypte qu'au milieu des fetes preparees sur son passage ; com- " bien il est a regretter qu'on lui ait laisse ignorer les malheurs des " pauvres habitans de I'Bgypte, il saurait pourquoi je n'ai pas voulu " me soumettre a cette justice a la Turque. Non jamais, je n'ac- " cepterai les juges d'Egypte, et si la justice du pays me manquait, " je n'humilierais pas la robe d'avocat que je porte jusqu'ii me sou- " mettre au jugement du pacha. ' " ' M''. Odilon Barrot replique dans I'interet du pacha d'Egypte, " et commence ainsi : — ■ " ' Mon adversaire a abuse de la reserve qui m'^tait commandee " dans cette affaire en venant apportcr ii votre barre certains faits, " certaines inductions centre lesquels je dois protester avec le de- " menti le plus formel. Ma position personnelle dans ce d^bat, m'in- " terdit d'entrer dans des explications sur les faits dont vous a parle " M. Solon. Je n'ai pas a dtfendre aujourd'hui le gouvernement " Egyptien que mon adversaire ^'ient d'attaquer. II a pretendu " que le gouvernement de Mehemet-Ali n'ctait pas rme souve- APPENDIX VI. 623 " raiaete, parce que le vice-roi paie un tribut ii la Porte. Cela est " vrai, mais ce n'est pas Ik la question qui s'agite entre nous en ce " moment.' " M'^. Odilon Barrot soutient que M. Solon a traits avec M^he- " met-Ali, comme avec un souverain Stranger, puisqu'il a demand^ " et obtenu I'autorisatiou du gouvernement Fran^als pour entrer au " service du gouvernement Egyptien. ' Mon adversaire ' dit-il, ' a " si bien compris que le debat etait entre lui et le gouvernement ' ^gyptien, qu'il a assign(5 en la personne du ministre des affaires " ^trangeres du vice-roi. ' " M". Odilon Barrot, apres avoir resum^ sa premiere discussion " sur la question de competence, termine ainsi : — " ' Cette question est d'une grave importance, non seulement pour " vous. Monsieur (Forateur s'adresse a M. Solon), mais encore " pour tous les Fran9ais qui s'honorent eux-memes, et qui honorent " la France, en consaorant leur intelligence au developpement de la " civilisation naissante de I'Orient. Mais qu'on y songe, si le vice- " roi se voit en butte aux attaques des Franjais qu'il prend a son " service, s'il se voit traduit pour des actes de son pouvoir devant " des Tribunaux Frangais, il repoussera loin de lui les representans " de notre pays.' " M. I'avocat du Eoi Mongis a pris la parole en ces termes: — " ' On vous I'a dit, Messieurs, la question est grande, mais la " simplicity est presque toujours I'attribut de la grandeur. A ce " titre, nous croyons le debat facile a preciser, et nos conclusions " ne se feront pas attendre. " ' Le Tribunal est-il competent pour statuer entre M. Solon et " S. A. Mehemet-Ali ? " ' Et d'abord, sur quel point s'agite la question de competence ? " II semblerait, a entendre I'une des parties, qu'elle vous demands " simplement k faire un acte conservatoire ou k saisir en vertu d'un " titre depuis long-temps pass^ en force de chose jugee. On vous " cite des auteurs qui ont reconnu saisissables les biens de toute " nature appartenant meme a des souverains sur un sol etranger. " ' Mais la difficulte n'est pas la : ce que Ton vous demande, c'est " ce titre meme qui manque a M. Solon ; c'est la condamnation " dont il a besoin pour agir centre son adversaire ; c'est la conse- " oration du fond meme de son droit, sans en apprecier les limites. " ' Et c'est ici que se pr(^sentent deux graves questions pr^judi- " cielles, tirees, la premiere de la quality de I'une des parties, la " seconde de la nature du contrat. " ' Sur la premiere question, celle de souverainete, elle a et& de- " battue par le defenseur de M^h^met-Ali, avec Tautorit^ de cette " voix grave et severe qui se prete si bien aux grandes consid&a- " tions d'ordre public. Nous nous en r^ferons sur ce point a ce qui " a et6 dit, ne voulant pas I'affaiblir en Je r^p^tant. Nous ajoutons " seulement que M. Solon a rendu I'argumentation plus puissante G'24 . APPENDIX VI. " centre lui en reconnataaant qu'il avait traite avec le vice-roi " d'^Egypte en m^me temps qu'avec Meh^met-Ali, avec le prince " souverain, inseparable, selon lui, du simple particulier, et pour " tout dire en un mot, la nature des institutions qui r^gissent 1' Orient " rendait cette confusion inevitable, oar 1^ tous les pouvoirs repo- " sent dans une seule main, et c'est Ik qu'il est encore permis aux " princes de dire : UStat, c'est moi. " ' La nature du contrat ne rfeiste pas moina i la competence, car *' M. Solon n'a pas fait une march^, il a accept^ une fonction pub- " lique ; il s'est mis au service d'une puissance : il ne releve que " d'elle seule, qviant ^ la remuneration qu'eUea pu lui accorder. " ' Et voyez. Messieurs, combien ceci est frappant I Supposez un " Fran9ais acceptant des fonctions du prince en France, 1^ ou " vous avez, comme on dit, plenitude de juridiction, est-ce a vous " que ce fonctionnaire viendrait demander le reglement de sonhono- " rable salaire? Non, une autre juridiction devrait etre saisie. Eh " quoi ! alora que la fonction r^l^ve d'un prince Stranger, libre, " independant, alors que la difficult^ grandit de toute la puissance " d'une question de droit international, c'est k votre barre que le ' ' fonctionnaire Stranger tralnerait une souverainete toangere ! " ' Cela est impossible. " ' Si M. Solon pr^tendait qu'il a fait un marche et non pas accepte " une fonction, nous lui repondrions avec une lettre adressee par lui " k M. le garde-des-sceaux de France, lettre par laquelle " au " moment," dit-il, " d'aocepter une fonction k I'etranger il en demande " I'autorisation k son gouvemement naturel, afin de ne pas perdre " sa quality de Fran9ais." " ' La question ainsi precis^e. Messieurs, nous ne croyons pas " devoir alarmer vos esprits par un aper9U des graves difiScultes des " complications de toute nature que pourrait entralner rex^cution " de votre jugement, s'il etait favorable aux voaux du demandeur. " Ces difEcultea sont d'une telle nature, cependant, qu'elles ont pese " pour beauoonp dans la fixation de la jurisprudence qui, pour le " dire en passant, est a peu prfes unanime et ronstante dans le " sens des principes que nous defendons. C'est quelque chose, " en eifet, dans le doiite, que oet adage ; Salus popiili, suprema " lex esto !' " M. I'avocat du Roi fait remarquer en peu de mots qu'en agitant " longuement la question de savoir si S. A. etait ou non un souve- " rain independant, on n'a fait tout au plus que reculer la difficulty. " En elFet, en supposant que le vice-roi relev&t de la Porte, pour la " ratification du contrat dont il s'agit, cette ratification a eu lieu " tacitement, et, en tous cas, le proems engage centre la Porte elle- " mime n'en serait peut-etre que plus difficile. " ' Messieurs,' dit en terminant M. I'avocat du Roi, ' puisque Ton a " beaucoup eiev^ ce debat, puisque Ton a cru devoir de parti et " d'autre apprecier d'une mani^re bien differente I'attitude et les APPENDIX VI. 625 " droits de I'Egypte envers les nationaiix Fran9ais, qu'il nous soit " permis de ne pas rester tout k fait Stranger a ces appreciations. " II est digne de la magistrature Frangaise de rendre hommage a, " un prince qui vient apprendre en France a gouverner les hommes " selon la loi, qui vient demander a la France de combler I'abime " qui s^pare encore I'Orient de I'Occldent, la barbarie de la oivili- " sation, le despotisme de la liberte, I'arbitraire de la legality. Et " vous ne voudrez pas, Messieurs, que ce prince qui s'est montr6 " plein d'admiration pour vos lois, parce qu'eUes sont egales pour " tous, puisse croire qu'il s'est tromp6, et que vos lois, en respeotant " la liberte des individus, se plaisent a violer Tinddpendanoe des " nations et la souverainete des princes.' " Le Tribunal, conform^ment a ces conclusions, a rendu le juge- '• ment dont voici le texte : — " ' Attendu que selon les principes du droit des gens, les Tribu- " naux Frangaisn'ontpas juridictionsurles gouvernemens Strangers, " a moins qu'il ne s'agisse d'luie action a I'occasion d'un immeuble " poss^de par eux en France oomme particulier, ce qui emporte " attribution territoriale et execution. " ' Attendu qu'en matiere de d^clinatoire le juge doit avant tout " consulter les termes de la demande ; " ' Attendu que Faction de Solon est une action personnelle qu'il " motive sur un pr^tendu engagement, dont la rupture lui aurait " caus6 un prejudice; " ' Attendu que toutes les expressions de la demande lui donnent " le caractere personnel et revelent qu'elle est dirigee centre le " gouvernement Egyptien, et non contre un particulier ; " ' Attendu que pour appr^cier cette demande, il ne faudrait pas " examiner un acte particulier ayant pour cause un int^rSt prive ; " mais un acte administratif et gouvernemental, intervenu entre un " gouvernement et un fonctionnaire, auquel il a ^t^ confdr^ un em- " ploiet une mission dont le demandeur a du peser les consequences " qu'il serait en outre n^oessaire de rechercher les causes de la " rupture qui motive Taction; que de pareiUes appreciations ne " sauraient appartenir k la juridiction Frangaise. " ' Attendu que la demande ne tend pas seulement a faire vali- " der des saisies-arrets pratiquees sur des marchandises appartenant " soit au gouvernement Egyptien, soit k Meh^met-Ali personnelle- " ment, mais d'abord et avant tout, pr^judioiellement, a obtenir " contre ce gouvernement la somme de 100,000 francs de dora- " mages-int^rSts. " ' Ee5oit S. A. Meb^met-Ali opposant au jugement rendu par " defaut, le 25 Aoflt 1846, et faisant droit, declare ledit jugement " non avenu ; " ' Se declare incompetent sur la demande introduite par M. " Solon, et le condamne aux depens.' " VOL. ir. s s 626 APPENDIX VU. APPENDIX VII. Part VI. Chap. II. Page 155. EIGHTS OF AMBASSADORS. No. 1. "An Act for preserving the Privileges of Ambassadors, and other " publick Ministers of foreign Princes and States (a). " Whereas several turbulent and disorderly persons having in a " most outragious manner insulted the person of His Excellency " Andrew Artemonowitz Mattueof, Ambassador Extraordinary of " His Czarish Majesty, Emperor of Great Russia, Her Majesties " good friend and ally, by arresting him, and taking him by violence " out of his coach in the publick street, and detaining him in custody " for several hours, in contempt of the protection granted by Her " Majesty, contrary to the law of nations, and in prejudice of the " rights and privileges tohich ambassadors and other publick mini- " sters, authorized and received as such, have at all times been thereby " possessed of, and ought to be kept sacred and inviolable ; be it " therefore declared by tlie Queen's most exeellent Majesty, by and " with the advice and consent of the lords spiritual and temporal, " and commons, in Parliament assembled, and by the authority of " the same. That all actions and suits, writs, and processes com- " menced, sued, or prosecuted against the said ambassador, by any " person or persons whatsoever, and all bail bonds given by the said " ambassador, or any other person or persons on his behalf, and all " recognizances of bail given or acknowledged in any such action or " suit, and all proceedings tipon or by pretext or coloiir of any such " action or suit, writ or process, and all judgments had thereupon, " are utterly null and void, and shall be deemed and adjudged to " be utterly null and void, to all intents, constructions, and purposes " whatsoever. " II. And be it enacted by the authority aforesaid, that all entries, " proceedings, and records against the said ambassador, or his bail, " shall be vacated and cancelled. " III. And to prevent the like insolences for the future, be it " further declared by the authority aforesaid, that all writs and pro- " cesses that shall at any time hereafter be sued forth or prosecuted, " whereby the person of any ambassador, or other publick minister " of any foreign Prince or State, authorized and received as such by " Her Majesty, her heirs or successors, or the domestick, or domestick (o) 7 Atme, cap. 12. APPENDIX All. 627 " servant of any such ambassador, or other publick minister, may be " arrested or imprisoned, or his or their goods or chattels may be " distrained, seized, or attached, shall be deemed and adjudged to be " utterly null and void to all intents, constructions, and purposes " whatsoever. " IV. And be it further enacted by the authority aforesaid, that " in case any person or persons shall presume to sue forth or pro- " secute any such writ or process, sucli person and persons, and all " attorneys and soUicitors prosecuting and solliciting in such case, " and all officers executing any such writ or process, being thereof " convicted, by the confession of the party, or by the oath of one or " more credible witness or witnesses, before the Lord Chancellor, or " Lord Keeper of the Great Seal of Great Britain, the Chief Justice " of the Court of Queen's Bench, the Chief Justice of the Court of " Common Pleas for the time being, or any two of them, shall bo " deemed violators of the laws of nations, and distui'bers of the " publick repose, and shall suffer such pains, penalties, and corporal " punishment, as the said Lord Chancellor, Lord Keeper, and the " said Chief Justices, or any two of them, shall judge fit to be im- " posed and inflicted. " V. Provided, and be it declared, that no merchant or other " trader whatsoever, within the description of any of the statutes " against bankrupts, who hath or shall put himself into the service " of any such ambassador or publick minister, shall have or take " any manner of benefit by this Act. '' VI. And that no person shall be proceeded against as having " arrested the servant of an ambassador or publick minister, by " virtue of this Act, unless the name of such servant be first regis- " tred in the office of one of the, principal secretaries of state, and " by such secretary transmitted to the sheriffs of London and " Middlesex for the time being, or their under sheriffs or deputies, " who shall, upon the receipt thereof, hang up the same in some " publick place in their offices, whereto all persons may resort, and '' take copies thereof without fee or reward. " VII. And be it further enacted by the authority aforesaid, that " this Act shall be taken and allowed in all Courts within this king- " dom as a publick Act ; and that all Judges and Justices shall take " notice of it without special pleading ; and all sherifis, bailiffs, and " other officers and ministers of justice, concerned in the execution " of process, are hereby required to have regard to this Act, as they " will answer the contrary at their peril." s s 2 628 APPENDIX VII. No. 2. Memoir of the French Minister (1772) on the Privileges of Ambassadors. " NO. III. " Memoire que le Ministre de France ft remettre aux Amhassadeurs et Ministres etrangers residant a Paris, en Feurier 1772 (b). " ' L' IMMUNITY des ambassadeura et autres ministres publics, est " fondee sur deux principes : (1) sur la dignite du caractere re- '^ pre'sentatif auquel ils participent plus ou mains; (2) sur la con- " vention tacite qui resulte de ce qu'en admettant un ministre " e'tranger, on reconnait les droits que V usage, ou, si Von veut, le " droit des gens lui accorde. " ' Le droit de representation les autorise a jouir, dans une mesure " determin^e, des prerogatives de leurs maitres. En vertu de la " convention tacite, ou, ce qui est la inSme chose, en vertu du " droit des gens, ils peuvent exiger qu'on ne fasae rien qui les " trouble dans leurs fonctions pubUques. " ' L' exemption de la juridiction ordinaire, qu'on appelle propre- " ment immunite, decoule naturellement de ce double principe. " Mais I'immunite n'est point iUimit^e ; elle ne peut s'etendre qu'en " proportion des motifs qui lui servent de base. " ' II resulte de \h., (1) qu^un ministre public ne peut en jouir " qiiautant que son maitre enjouirait lui-meme; " ' (2) QuHl ne peut en jouir dans le cas oil la convention tacite " entre les deux souverains vient a cesser. " ' Pour ^claircir ces maximes par des examples analogues h. " I'objet de ces observations, on remarquera : " ' (1) Qu'il est constant qu'un ministre perd son immunity, et " se rend sujet k la juridiction locale, lorsqu'il se livre a des " manoeuvres qui peuvent ^tre regard^es comme crime d'etat, et " qui troublent la s^curit^ publique. L'exemple du Prince de " Cellamare constate ces maximes a cet ^gard. " ' (2) L'immunite ne peut avoir d'autre effet que d'ecarter tout " ce qui pourrait empicher le ministre public de vaquer k ses " fonctions. " ' De 1^, il resulte que la personne seule du ministre jouit de " Timmunit^, et que ses biens pouvant etre attaques sans interrom- " pre ses fonctions, tous ceux qu'un ministre poss^de dans le pays •• ou il est accr^diti^, sont soumis a la puissance territoriale, et " c'est par une suite de ce principe, qu'une maison ou une rente (6) Be Martens, Cauws CMihres, t. ii. p. 112. APPENDIX VII. 629 " qu'un ministre etranger poss^derait en France, seraient sujettes " aux mSmes lois que les antres hMtages ; " ' (3) La convention tacite sur laquelle Timmunit^ se fonde, " cesse lorsque le ministre se soumet formellement a I'autorit^ " locale, en contractant par-devant un notaire, c'est-&-dire en in- " voquant I'autoritd civile du pays qu'il habite. " ' Wicque/ort qui, de tons lea auteurs, est le plus zeU pour la " defense du droit des ministres publics, et qui s'y livrait aveo " d'autant plus de chaleur qu'il dtfendait sa propre cause, convient " de ce principe et avoue : " ' Que les ambassadeurs peiwent etre forces de remplir les con- " trata qu'ils ont passes par-devant notaire, et qu'on pent saisir " leurs meubles pour prix de luyer des maisons, dont les haux " auraient ete passes de cette maniere. (T. I. p. 416.) " ' (4) L'immunit^ etant fondle sur une convention, et tout con- " vention etant reciproque, le ministre public perd son privilege, " lorsqu'il en abuse centre les intentions constantes de deux sou- " verains. " ' C'est par cette raison qu'un ministre public ne peut pas se " pr^valoir de son privilege pour se dispenser de payer les dettes " qu'il peut avoir contractees dans les pays ou U reside : " ' (1) Parceque I'intention de son maltre ne peut point etre " qu'il viole la premifere loi de la justice naturelle, qui est ante- " rieure aux privileges du droit des gens ; " ' (2) Parce qu'aucun souverain ne veut, ni ne peut vouloir que " ces prerogatives tournent au detriment de ses sujets, et que le " caractere public devienne pour eux un piJge et un sujet de ruine ; " ' (3) On pourrait saisir les biens mobiliers du prince meme que " le ministre represente, s'il en poss^dait sous notre juridiction ; " de quel droit les biens du ministre seraient-ils done exceptes de " cette rfegle ? " ' (4) L'immunit^ du ministre public consiste essentieUement a " le faire considdrer comme s'il continuait a r^sider dans les Etata " de son maltre. " ' Eien n'empeclie done d' employer vis-a-vis de lui les moyens " de droit dont on userait s'il se trouvait dans le lieu de son " domicile ordinaire. " ' (5) In en restdte qu'on peut le sommer d'une maniere legale, " de satisfaire ^ ses engagemens et de payer ses dettes, et " Bynkershoek decide formellement, p. 186, que ce n'est pas peu " respecter la maison d'un ambassadeur que d'y envoyer des " officiers de justice, pour signijier ce dont il est besoin de donner " connaissance a r ambassadeur. " ' (6) Le privilege des ambassadeurs ne regarde que les biens " qu'ils possedent comme ambassadeurs, et sans lesquels ils ne " pourraient exercer les fonctions de leur emploi. " ' Bynkershoek, p. 168 et 172, et Barbeyrac, p. 173, sont de cet 630 APPENDIX Tir. " avis, et la cour de Hollande a adopte cette base dans I'ajourne- " ment qu'elJe fit signifier en 1721 a I'envoy^ de Holstein, apres " avoir accorde saisie de tons ses Mens et effets, autres que meubles " et equipages, et autres choses appartenantes a son caractere de " ministre. — Ce sont les termes de la Cour de Hollande du 21 " Fevrier 1721. " ' Ces considerations justifient sufEsamment la regie qui est re9ue " dans toutes lea cours, qu'un ministre public ne doit point partir " d'un pays sans avoir satisfait ses creanciers. " ' Lorsqu'un ministre manque a ce devoir, quelle est la conduite " a tenir ? c'est la seule question essentielle que la matiere puisse " faire naitre. EUe doit se decider par un usage conforme aux " difFerentes maximes qu'on a etablies ci-dessus. " ' On ne parlera point de I'Angleterre, ou I'esprit de la legisla- " tion, borne a la lettre de la loi, n'admet point de convention " tacite, ni de presomption, et oil le danger d'une loi positive dans " une matifere aussi delicate, a jusqu'ici empeche de fixer legale- " ment les prerogatives des ministres publics. " ' Dans toutes les autres cours, la jurisprudence parait k peu " pres^egale, les precedes seuls peuvent difFerer. " ' A Vienne, le marechalat de I'empire s'arroge, sur tout ce qui " ne tient pas a la personne de I'ambassadeur et a ses fonctions, " une juridiction proprement dite, dans une etendue qu'on a quel- " quefois envisagee difficile a concilier avee les maximes generale- " ment rejues. Ce tribunal veille d'une maniere partiouliere sur " le paiement des dettes contractees par les ambassadeurs, surtout ' ' au moment de leiu: depart. " ' On en a vu I'exemple, en 1764, dans la personne de M. le " Comte de Czernicheff, ambassadeur de Eussie, dont les effets " furent arretes jusqu'^ ce que le Prince de Liechtenstein se fiit " rendu sa caution. " ' En Bussie un ministre public est assujetti a annoncer son de- " part par trois publications. On y arreta les enfans, les papiers " et les effets de M. de Bausset, ambassadeur de France, jusqu'a " ce que le roi eut fait son affaire des dettes que ce ministre avait " contractees. " ' A la Haye, le conseil de Hollande s'arroge une juridiction " proprement dite dans les Etats ou les interets des sujets se trou- " vent compromis. " ' En 1688 un exploit fut signifi^ a un ambassadeur d'Espagne " en personne, qui en porta des plaintes {Bynkershoelc, p. 188) ; " les Etats jugferent .qu'elles ^talent fondees, en ce qu'il n'aurait " fallu remettre I'exploit qu'aux gens de I'ambassadeur. " ' A Berlin, en 1723, le Baron de Posse, ministre de Suede, fut " arrete et garde, parce qu'il refiisait de payer un selHer, malgre " les ayertissemens reiteres du magistrat. " ' A Turin, le carosse d'un ambassadeur d'Espagne fut arrecd APPENDIX VII. 631 '' SOUS le regne (I'Emmanuel. La cour de Turin se disculpa k la " verity de cette violence ; mais personne ne r^clama contre leS " procedures qui avaient et^ faites pour condamner I'ambassadeur " a payer ses dettes. " ' Ces exemples paraissent suffire pour ^tablir en principe qu'un " ministre Stranger peut-etre contraint h payer ses dettes. lis " constatent mSme I'extension qu'on a quelquefois donn^e au droit " de coaction. " On a soutenu qu'il sufEsait d'avertir le ministre de payer ses " dettes pour justifier, en cas de refus, les voies judiciaires et meme " la saisie des effets. " ' Grotius, liv. ii. chap. 18. dit: que si un ambassadeur a " contracte des dettes et qu'il riait point Wimmeuhles dans le pays, " il faut lui dire honnStement de payer ; s't7 le refusait, on s'adres- " serait a son maitre, apres quoi on en viendrait aux voies que Von " prend contre les de'biteurs qui sont d'une autre juridiction. " ' Or ces voies sont les procedures legales qui tombent sur les " biens de I'ambassadeur, autres que ceux qui sont immediatement " necessaires k I'exercice de ses fonctions, ainsi qu'on I'a dej&, " observe. " ' L'opinion la plus moderee est, qu'il convient dans tous les " cas de s'abstenir, autant qu'il est possible, de donner atteinte k " la decence qui doit environner le caractfere public ; mais le " souverain est autorise a employer I'espece de coaction qui n'em- " porte aucun trouble dans ses fonctions, et qui consiste a inter- " dire h. I'ambassadeur la sortie du pays, avant qu'il ait satisfait k " ses engagemens. " ' C'est dans ce sens que Bynhershoeh conseille d'employer con- " tre les ambassadeurs des actions qui emportent plus une defense " qu'une ordre de faire telle ou telle chose. Ce n'est alors qu'une " simple defense, et personne n'oserait soutenir qu'il soit illicite " de se deiendre contre un ambassadeur, qui ne doit pas troubler " les habitans en usant de violence et emportant ce qui appartient " a autrui. " ' Cette maxime est encore plus de saison, lorsque des circon- " stances particulieres et aggravantes ch argent le ministre du re- " proclie de mauvaise foi et de manoeuvres reprehensibles. " ' Lorsqu'il viole lui-m§me ainsi la saintete de son caractere et " la securite publique, il ne pent point exiger que d'autres le re- " spectent. " ' Pour appliquer ces maximes au cas particulier de M. le Baron " de Wrech, ministre plenipotentiaire du Landgrave de Hesse- " Cassel, U suflit de rappeler sa conduite depuis son arrivee k Paris, " et surtout depius huit mois. " ' Les voies indecentes qu'il avait adoptees pour se procurer de " I'argent, ayant ete supprimees, il s'est livrd k toutes sortes de 632 APPENDIX VII. " manoBuvres, que les mdnagemens qu'on a pour son caractere " empechent de caract^riser. " ' On se contentera de remarquer, que tout conduit k penser que " ce ministre a form^ le dessein de frustrer ses cr^anciers en " sortant du ro3aume ; et cette circonstance suffit pour autoriser " k prendre contre lui les mSmes mesures qu'on prendrait, s'il etait " effeotivement sorti du royaume, aprfea avoir depose son caractere " par la remise de ses lettres de rappel. " ' Le ministere des affaires toangeres I'a fait exhorter par le " magistrat charg^ de la police, et I'a exhorts lui-meme, a faire " honneur a ses engagemens. " ' Dfes-lors les poursuites qu'on pouvait faire contre lui deve- " naient legitimes, pourvu qu'elles ne passassent pas les homes " indiquees plus haut. " ' Le Marquis de Bezons se trouvait meme dans un cas plus " particulier ; le Baron de Wrech avait contract^ avec lui par ^crit ; " il avait promis de fournir caution bourgeoise pour I'execution du " bail de la maison. Le Baron de Wrecla avait done contract^ " I'engagement d'assujettir indireotement cette execution k la juri- " diction territoriale dans la personne de sa caution. H est vrai " qu'il n'a pas juge k propos de rempUr cette obEgation ; mais " comme il est assurement le garant de son propre fait, le Marquis " de Bezons pouvait, selon les regies de I'equit^ et du bon sens, " s'en prendre a lui-mSme ; et il ne peut-etre admis a se faire un " titre de la mauvaise foi meme qui caracterise le refiis d'executer " cette clause de la convention. " ' C'est d'apres ces considerations que, sur les plaintes multi- " pli^es des creanciers du Baron de Wrecb, le ministre des affaires " etrangeres crut devoir suspendre I'expedition du passeport que ce " ministre demanda pour sortir du royaume, en alleguant des " ordres du Landgrave son maltre, jusqu'a ce que les intentions de " ce prince fussent connues par le canal du ministre qui reside de " la part du roi auprfes de lui. " ' II permit en meme temps au Marquis de Bezons de faire " valoir ses droits par les voies l^gales, et il en prevint le Baron de " Wrecb. " ' Ce ministre s'^tant n^anmois plaint qu'on s'etait prevalu de- " cette permission pour forcer sa porte, pour lui signifier I'exploit " de la vente de ses meubles, et tout acte de violence devant etre " banni des precedes en pareU cas, on n'a pu s'empecher de blamer " cet exc^s, et on a cru devoir suspendre toute poursuite ult&ieure. " Mais, afin de concilier la protection que le roi doit a ses sujets, " avec les ^gards dus au cai'actere public, et afin de remplir tous " les precedes que les regies du droit des gens peuvent dieter, le " ministere des affaires etrangeres vient de d^ferer au Landgrave " lui-meme la conduite de son ministre. " ' Ce prince pourra d'autaut moins trouver a redire a la conduite APPENDIX VII. 633 ' ' qui a et^ tenue avec son ministre, qu'un fait recent a mis en ^vi- " dence le sentiment qu'il avait lui-meme sur I'immunit^. II fit " en effet emprisonner, il y a quatre ou cinq ans, le Comte de " Wartensleben, ministre de Hollande, pour le forcer de rendre " compte d'une fondation dont il ^tait Tex^cuteur. L'entreprise " sur la personne d'une ministre public fut k la verity condamn^e ; " mais lea Etats g^n^raux ne contcstferent pas la juridiction du " Landgrave ; et, dans le cas ou se trouve le Baron de Wrech, les " principes que ce prince a soutenus, ne lui permettront pas de " soustraire son ministre aux mesures capables d'assurer les droits " des sujets du roi, ni de les priver du seul gage qu'ils aient de " I'execution de leurs conventions avec lui.' " La ' Gazette de Prance ' ayant public ce m^moire dans une de ses " feuilles, le Baron de Wrecb en porta plainte au Due d'AiguiUon ; " qui toutefois se contenta de lui faire la r^ponse suivante, " NO. IV. " Lettre du Due iVAiguillon au Baron de Wreck, ministre de Hesse- Cassel a la cour de France ; du 23 Janvier 1772. " ' Je ne perds pas un moment, Monsieur, pour r^pondre a la " lettre que vous m'avez fait I'honneur de m'ecrire le 22 de ce mois. " ' C'est avec une peine bien vive que j'apprends que I'on a in- " ser6 dans la gazette de . . . un ecrit relatif k votre position " et qui vous soit injurieux. Je m'empresse, Monsieur, de vous " declarer que je d^savoue tout ce qu'on peut avoir public sur cette " aiFaire, qui par sa nature et par les ruesures que le roi a jug6 k " propos de prendre doit Itre tenue secrfete. Je ne puis done qu'ap- " plaudir au parti que vous avez pris de demander justice centre " la publicity donnee k cette affaire, et vous prie d'agr^er I'assu- " ranee de.ma haute consideration. " ' VersaiUes, le 23 F^vrier 1772. " ' Le Due d'Aiguillon. ' " Ce ne fiit que lorsque le Landgrave de Hesse-Cassel efit fait son affaire des engagemens pris par le Baron de Wrech, que " celui-ci obtint ses passeports, et put quitter Paris. " 634 APPENDIX VII. Jan. 31. 1854. " An action having been brought against a foreign minister and other co-contrac- tors, the minister entered an appear- ance, and allowed the action to proceed till issne joined, and got a rule for a No. 3. Amhassador — Civil Jurisdiction, 4rc. TAYLOR V. BEST, DROUET, AND SPERLING (c). Ambassador — Secretary of Legation — Privilege — Exemption from Suit — Attorning to Jurisdiction — Stay of Procedings. " This action was brought against the defendants as directors of ' a society formed in Belgium and London for working the Eoyal ' Nassau Sulphate of Barytes Mines, to recover deposits paid by ' the plaintiff on shares in the said society. Before the writ issued ' in June 1853, M. Drouet, who was Secretary of Legation of the ' King of the Belgians, instructed his attorney to write to the ' attorney for the plaintiff, to ask if a writ was to be issued, and if ' it was, to direct that it should be sent to him ; and alter the writ ' was issued M. Drouet directed his attorney to enter an appear- ' ance, which he did accordingly. M. Drouet was abroad from ' June tin the beginning of December on the duties of his office, ' and in the mean time the action proceeded. M. Drouet pleaded ' the general issue by his attorney. Notice of trial was given for the 20th of December, and a special jury was obtained on the application of M. Drouet. On M. Drouet's return to England in December, his attorney took out a summons to stay all pro- ' ceedings, or to strike out his name from the proceedings in the ' action, on the ground of his privilege as a public minister. The ' summons was heard before Talfourd, J., who ordered proceedings ' to be stayed tUl the 5th day of the next term. " WiUes (Jan. 12) moved for a rule nisi, on behalf of M. Drouet, ' upon affidavits of the foregoing facts, calling on the plaintiff and ' the other defendants to show cause why all the proceedings should ' not be set aside, or ftirther proceedings stayed, or M. Drouet's name struck out ; or if the rule should not be made absolute, ' why M. Drouet should not be at Kberty to withdraw his plea, and plead his privilege as a public minister. (e) Law Journal, vol. xxiii. p. 89. (Common Pleas.) jury. He then ap- plied to the Court to stay all proceed- ings against him, on the ground that he was exempt from suit in this country; but the Court re- fused to do BO (as he had not been interfered with in his person or his goods), on the ground that he had attorned to the jurisdiction by his voluntary appearance. " A secretary and councillor of legation of a foreign Sovereign, appointed by him, and having charge of the executive of the legation, and acting in the absence of the ambassador as charge-d^affaires, is a pubKc minister to whom the privileges of ambassadors apply. " A foreign ambassador does not lose his privilege of exemption from suit, by trading in this country, although his domestic servants do, under the limitation in the 7 AniM, u. 12, s. 5. " QiuBre. — Whether an ambassador can be brought unwillingly into the Courts of this country by process not aifecting either his person or his goods.'' APPENDIX VII. 635 " The Court having granted a rule nisi, Montagu Chambers and " Pearson (Jan. 30) showed cause. " Byles, Serj., appeared for the defendant Best, and objected to " the striking out of Drouet'a name. " Hannen showed cause for the defendant Sperling. ' M. Drouet " is not entitled to have his name struck out in this action.' " Judgment was delivered as follows : — " Jervis, C. J. — 'I am of opinion that the rule in this case " ought to be discharged. There is no doubt that the defendant " M. Drouet fills the office of a public minister, such as the privi- " lege contended for will attach to ; and I think it equally clear " that if the privilege do attach, as it undoubtedly does attach to " the character of minister, it is not, in the case of a minister, '' interfered with or abandoned by the circumstance of trading, as it " would be if the claim were set up in respect of the privileges of a " servant of the ambassador, under the statute of Anne. If an am- " bassador or minister violate the character in which he is delegated '' to this country, by entering into commercial transactions, that raises " a question between-the country to which he is sent and the country " from which he is sent ; but he does not thereby lose any privi- " lege to which he may be entitled, the privilege being a general " privilege, and the limitation attached to the privilege, by reason " of trading, being confined by the statute of Anne to the case of " servants of the ambassador, — who may lose the privilege. I " am reminded that the case referred to, Barbuit's case, in the time " of Lord Chancellor Talbot, is an authority on that subject. " Admitting, therefore, that the applicant in this case is a person " entitled to the general privilege, which he has not lost by any " trading transactions into which he may have entered, — if such " be established to the satisfaction of the Court, — the question is, " whether he is entitled, under all the circumstances of the case, " to the privilege which he now claims. Now, although it is ad- " mitted that no process against person or goods can be available " against the person or goods of an ambassador or minister, no case " has been cited to show that an application like this, to stay all " the proceedings in an action against such a person, is available " in the Courts of this country. On the contrary, it appears on " examination, that in the case of servants, — and the same principle " must apply with reference to ministers, — the practice has been, " not to stay all proceedings, but to relieve the person of the servant " from the vexation of service of process, or of bail ; and the appli- " cations have hitherto been, — as far as I can understand them, — " where the party has been arrested, to discharge him from the " arrest on entering a common appearance. The case of Crosse v. " Talbot (d) recognises the old principle. That was a motion, on {d) 8 Mod. 288. 636 APPENDIX VII. " behalf of the defendant, to set aside a bail-bond given upon his " arrest, and that common bail might be accepted for him ; and h6 " obtained a rule to show cause : and the rule was afterwards dis- " charged, on the ground that he did not bring himself strictly " within the privilege as the servant of an ambassador. The Court " held, that to be privileged he ought to be a domestic servant, and " really to exercise the duties of his office, and that his being a mere " nominal servant was not sufficient." The reporter adds, " A great " many cases have since been determined upon the same principle ; " but it was in those cases held, that the idea of a domestic servant " was not confined to his living in a foreign minister's house, pro- " vided he was a real servant, and actually performed the service." " Therefore," the reporter states, " as far as his knowledge went, a " great many cases had been determined on that kind of application, " which was not to stay all proceedings, but to discharge a bail- " bond on entering a common appearance, so as to let the proceed- " ings go on. I mention this, not with reference to the general " principle of the case, but with respect to the form of application. " No case has been produced to the Court of -an application where " the personal liberty of the defendant has not been interfered with ; " and, further, I am not aware of any case in which, an action " having been brought against several defendants — afler the case " has advanced, as this has done, up to the time of trial — it has " been allowed, upon the application of one defendant, to stay all " proceedings. If that were permitted, it would follow that all the " other defendants having been put to considerable expense, pro- " ceedings would have to be begun de novo, and what had been " expended in the progress of the suit would become utterly useless. " It is sufficient to say that I am not aware of any such application " having been made. But, apart from the form of this motion, it '' seems to me that this rule should be discharged upon the merits " of the case. It is an action against four defendants; the writ " was sued out against M. Drouet, as one of four joint contractors. " There is no doubt that the plaintiff was bound in the first in- " stance to sue them all, or he would have been subject to a plea " in abatement, and the other defendants would have contested the " point of jurisdiction, without minding whether Drouet was the " subject of the suit or not. The writ being issued, nothing is " done to interfere with the free exercise of the minister's functions, " or with his comfort or dignity in this country ; but knowing or " apprehending that a writ is to be issued, he gives instructions to " an attorney in whom he has confidence to write to the attorney " for the plaintiff, to ask if a writ is to be issued, and if it is, then " to beg that it may be sent to him. He, therefore, solicits the " action against him ; and voluntarily entering an appearance, he " voluntarily submits to the jurisdiction of the Court. Now, it " seems to me that, under these circumstances, the defendant APPENDIX VII. 637 " (DroTiet) cannot now be allowed to complain that a suit has been " instituted against him. " ' It is contended, and perhaps it is undoubted, that an ambas- " sador or minister has a privilege from suit, or, at all events, from " such suits as ultimately result in the taking of his person, or of " his goods necessary for his state or comfort; and that he cannot " be compelled, in invitum or involuntarily, to enter into litigation " in a country in which he is resident ; but it is admitted by aU " the foreign jurists, that where suits can be founded without " attacking the personal liberty or comfort, or interfering with the " personal privileges of the individual, they may proceed. Various " passages have been cited to show that in countries where the " Civil Law prevails, and where jurisdiction can be founded by a " proceeding in rem in the first instance, the action may proceed " where there are houses or land, that are immovable, and may be " taken to found the jurisdiction. All movable goods, too, which " are unconnected with the comfort or dignity of the minister may " be taken for that piurpose. When we consider the effect of such " proceeding, and what may be done in such case by a minister if " he pleases, there seems to be little distinction between that pro- " ceeding and the present ; because, although it is perfectly true " that where the Civil Law prevails, you may proceed by attach- " ment or writ, and incidentally establish the means of litigation " between the parties, without interfering with the person of the " defendant, yet if the defendant choose, either for the purpose of " protecting his goods, or of investigating the question in dispute, " to appear, the suit, which was originally in rem, is turned into " one in personam ; and it is a daily practice in Scotland, that " goods, which were originally taken for the mere purpose of " founding the jurisdiction, are held as a pledge or security for " the fruits of the judgment, if judgment be ultimately obtained. " If, therefore, you have a right in Holland or elsewhere, by taking " goods, to found jurisdiction, and a minister may come in if he " please, and turn the suit into a suit in personam, he could not " then object to the jurisdiction of the Courts. It seems to me " that there is no distinction between that case and the case now " before us, where the writ was not even served upon the de- " fendant, and where no step was taken to interfere with his person " or to disturb his comfort, but where a writ was issued to which " he voluntarily appeared, submitting himself to the jurisdiction of " the Court. I am not affected by what was so strongly urged in " the course of the argument, namely, that the privilege, being the " privilege of the Sovereign, cannot be abandoned by the minister ; " because when the authorities referred, to come to be examined, •' they do not show that a minister may not submit to the jurisdic- " tion for the purpose of having the m.atter in dispute investigated ; " but that the sacred character of the person of the ambassador 638 APPENDIX VII. cannot be abandoned by his own voluntary act, and tbat by interfering with his person or taking the goods necessary to his position, you interfere -with the privilege of his master. But that is not the case here. For aught that appears here, M. Drouet was sued only for the purpose of ascertaining the liability of others, he being a necessary party to the action. If he had not chosen to take the step by which he attorned to the jurisdic- tion of this Court, the case might have gone on to judgment, and nothing might have been done in execution to affect him. If, as the fruits of the judgment, a ca. sa. arji.ja. had been issued against him, then, of course, the statute of Anne would have applied, and this Court would have interfered to protect him. It seems to me, therefore, under these circumstances, that this Court ought not to interfere on behalf of a party who has sub- mitted to the jm-isdiction, and, in fact, courted it.' " Maule, J. — ' I think, on the ground that M. Drouet has appeared in this action, and allowed it to go through certain stages, this application ought to fail. It is a grave question whether an ambassador, or public minister — which M. Drouet undoubtedly is — is so far protected as not to be liable in any manner, supposing him to object to the jurisdiction. That ques- tion is not decided by any legal determination in this country, nor, as far as judicial determinations go, do we find it so deter- mined elsewhere. With respect to mere cases in which a special application was made under the 5th section of the statute of Anne, they were cases in which servants of ambassadors who had been sued and arrested were discharged on common bail. Now, there is a great distinction between an ambassador and the domestic servant of an ambassador. The ambassador has a privilege ; and the privilege of his domestic servant is not the pri- vilege of the servant himself, but of the ambassador, and is based on the ground that the arrest of the domestic servant might inter- fere with the comfort or state of the ambassador. Where these are not interfered with at all, the ambassador is not interfered with by the suit ; and the servant has no privilege except that which arises from the privilege of the ambassador. It is an important point, and one fit to be very gravely considered when it fairly arises, whether an ambassador is liable to be sued by process not affect- ing his person or his goods ; whether by such a process he can be brought, unwillingly, into the Courts of this country, and have his rights determined on, perhaps even so as to interfere with his comfort. A man could not stand by and without care allow a suit to be determined on which the decision would be bind- ing upon him ; and, therefore, it may weU be questioned whether the privilege of the ambassador is not as extensive as the text of Blackstone alleges it to be. But it is not necessary to decide that point in the present case, because, whatever tlie extent of APPENDIX VII. 639 " the privilege may be, I think where a person voluntarily appears " in an action, and allows it to go on without interposing, to an " advanced stage, and where there has been no interference with " his person or property, and where the action may be carried out " with full effect, without interfering at all with such person, — to " such a case as that, I think we should do wrong to extend the " privilege of ambassadors. I, therefore, agree with my Lord " Chief Justice, that this rule should be discharged.' " Cresswell, J. — ' I agree with the opinion of my Brother Maule, " and for the reasons which he has assigned.'^ " "Williams, J., concurred. " Bute discharged.'''' No. 4. THE EMPEEGE OF BRAZIL V. EOBINSON AND OTHERS («). " Martin shewed cause against the rule nisi obtained by W. H. " Watson, for compelling the plaintiff to find security for costs, on " the ground of his being resident abroad. He cited The Duke " de Montellano v. Christin. That was an application to compel " the plaintiff to give security for costs. He was the Ambassador " from the Court of Spain. There Lord Ellenborough said — ' Con- " sidering that an ambassador is the immediate representative of " the crowned head whose servant he is, it would hardly be respect- " ful in the first instance to exact such a security, unless there " were pregnant reasons for believing it to be necessary.' The " ground therefore on which the opinion of the Court in that case " proceeded was, that the Ambassador was the representative of a " crowned head. The Court would not compel that representative " to find security for costs, and therefore, a fortiori, would not the " Court compel the crowned head itself to find security for costs. " The present rule must, therefore, be discharged. " W. H. Watson, in support of the rule, contended that the case " cited on the other side was perfectly distinguishable from the " present. There, the Spanish Ambassador was resident within the " jurisdiction of the Court, and there was no suggestion in the " afiidavits, on which the application was founded, that the plaintiff " was about to remove from the jurisdiction. Here, however, the " plaintiff was entirely out of the jurisdiction, and therefore no " reason existed for placing him in a better situation than any other " plaintiff who was resident abroad. " Williams, J. — ' If the ambassador could not be compelled to " find security for costs, I do not see how I can compel his Sove- (e) 5 Doiv. 522. 640 APPENDIX VII. " reign to find such security. I do not, therefore, think I am " authorised to interfere by compelling the plaintiff to find security " for costs. The present rule must, therefore, be discharged. If it " is desired, the application may be renewed in the full Court.' " Rule discharged." " W. H. Watson afterwards renewed his application in the full " Court, and stated that it appeared fi-om the affidavits on which " he moved, that the action was on a charter-party, for not duly " delivering certain wood shipped by the Emperor fi-om Brazil to '• this country. Plis Imperial Majesty, therefore, having engaged in " commerce, must be subjected to the same liabihties as any other " commercial person. If the proceeding had been in respect of any " matter connected with his political rank, the case might have been " different. " Martin showed cause in the first instance, and again cited the " Duke de Montellano v. Christin. " Lord Denman, C.J. — ' I think that the case cited in opposition " to this application is clearly distinguisshable from the present. " There, the ambassador was in this country merely in his political " capacity, and there was no reason to suppose that he was desirous " of leaving the country, or going out of the jurisdiction. Here, " however, the Emperor appears to have engaged in a commercial '■ transaction, and to be resident out of the jurisdiction. I see no " reason, therefore, for exempting him from the necessity of finding " security for costs, to which any other person bringing such an " action would be subjected. The present rule must consequently " be made absolute.' " Littledale, J., Patteson, J., and Coleridge, J., concurred. " Bule absolute.'' No. 5. LAW OF UNITED STATES OF NORTH AMERICA (/). "§ 1525. Under the confederation, an exclusive power was given " to Congress of ' sending and receiving ambassadors.' The term " ' ambassador,' strictly construed, (as would seem to be required " by the second article of that instrument,) comprehends the " highest grade only of public ministers ; and excludes those grades " which the United States would be most likely to prefer whenever " foreign embassies may be necessary. But under no latitude " of construction could the term ' ambassadors ' comprehend " consuls. Yet it was found necessary by Congress to employ the (/) Story on the Constitution of the United States (Amer. 2nd Edit.), voU. ii. pp. 356 et seq. APPENDIX VII. 641 " inferior grades of ministers, and to send and receive consuls. " It is true, tliat the mutual appointment of consuls might have " been provided for by treaty ; and where no treaty existed, Con- ' gress might perhaps have had the authority under the ninth ' article of the confederation, which conferred a general authority " to appoint oiScers for managing the general aifairs of the United States. But the admission of foreign consuls into the United ' States, when not stipulated for by treaty, was nowhere provided ' for. The whole subject was full of embarrassment and constitu- ' tional doubts ; and the provision in the Constitution, extending ' the appointment to other public ministers and consuls, as well ' as to ambassadors, is a decided improvement upon the Confedera- ' tion. " § 1560. The next section of the second article is: 'He (the ' President) shall from time to time give to the Congress informa- ' tion of the state of the Union, and recommend to their considera- ' tion such measures as he shall judge necessary and expedient. ' He may, on extraordinary occasions, convene both houses, or ' either of them ; and, in case of a disagreement between them, ' with respect to the time of adjournment, he may adjourn them ' to such time as he shall think proper. He shall receive ambas- ' sadors and other public ministers. He shall take care that the ' laws be faithfully executed ; and shall commission all the officers ' of the United States.' " § 1565. The next power is to receive ambassadors and other ' public ministers. This has been already incidentally touched. ' A similar power existed under the Confederation ; but it was ' confined to receiving ' ambassadors,' which word, in a strict ' sense, (as has been already stated,) comprehends the highest ' grade only of ministers, and not those of an inferior character. ' The policy of the United States would ordinarily prefer the ' employment of the inferior grades ; and therefore the' description ' is properly enlarged, so as to include all classes of ministers. Why ' the receiving of consuls was not also expressly mentioned, as the ' appointment of them is in the preceding clause, is not easily to ' be accounted for, especially as the defect of the Confederation ' on this head was ftiUy understood. The power, however, may ' be fairly inferred from other parts of the Constitution ; and indeed ' seems a general incident to the executive authority. It has coTJ~ ' stantly been exercised without objection ; and foreign consuls ' have never been allowed to discharge any functions of office ' until they have received the exequatur of the President. Consuls, ' indeed, are not diplomatic functionaries, or political representatives, '■ of a foreign nation ; but are treated in the character of mere com-. ' mereial agents. " S 1568. As incidents to the power to receive ambassadors and ' foreign ministers, the Presidientis understood to possess the power VOL. II. T T 642 APPENDIX VII. " to refuse them, and to dismiss those who, having been received, " become obnoxious to censure, or unfit to be allowed the privilege, " by their improper conduct, or by political events. While, however, " they are permitted to remain as public functionaries, they are " entitled to all the immunities and rights which the Law of Nations " has provided at once for their dignity, their independence, and " their inviolability. " § 1569. There are other incidental powers belonging to the " executive department, which are necessarily implied from the " nature of the functions which are confided to it. Among these " must necessarily be included the power to perform them without " any obstruction or impediment vvhatsoever. The President can- " not, therefore, be liable to arrest, imprisonment, or detention, " while he is in the discharge of the duties of his office ; and for " this purpose his person must be deemed, in civil cases at least, " to possess an official inviolability. In the exercise of his political " powers he is to use his own discretion, and is accountable only " to his country and to his own conscience. His decision in rela- " tion to these powers is subject to no control, and his discretion, " when exercised, is conclusive. But he has no authority to con- " trol other officers of the Government in relation to the duties " imposed upon them by law, in cases not touching his political " powers. " § 1658. The next clause extends the judicial power 'to all " cases affecting ambassadors, other public ministers, and consuls.' " The propriety of this delegation of power to the national judiciary " will scarcely be questioned by any persons, who have duly re^ " fleeted upon the subject. There are various grades of public " ministers, from ambassadors (which is the highest grade) down " to common resident ministers, whose rank, and diplomatic pre- " cedence, and authority, are well known, and well ascertained in " the law and usages of nations. But whatever may be their " relative rank and grade, public ministers of every class are the " immediate representatives of their sovereigns. As such representa- " tives, they owe no subjection to any laws, but those of their own " country, any more than their Sovereign ; and their actions are " not generally deemed subject to the control of the private law of " that State, wherein they are appointed to reside. He that is " subject to the coercion of laws is necessarily dependent on that " Power by whom those laws were made. But public ministers " ought, in order to perform their duties to their own Sovereign, " to be independent of every Power, except that by which they are " sent ; and, of consequence, ought not to be subject to the mere " municipal law of that nation wherein they are to exercise their " functions. The rights, the powers, the duties, and the privileges " of public ministers are, therefore, to be determined, not by any " mvmicipal constitutions, but by the law of nature and nations, which APPENDIX VII. 643 " is equally obligatory upott all Sovereigua and all JStates. What " these rights, powers, duties, and privileges are, are inquiries pro- '' perly belonging to a treatise on the Law of Nations, and need not " be discussed here. But it is obvious, that every question, in " which these rights, powers, duties, and privileges are involved, is " so intimately connected with the public peace, and policy, and " diplomacy of the nation, and touches the dignity and interest of " the Sovereigns of the ministers concerned so deeply, that it would " be unsafe that they should be submitted to any other than the " highest judicature of the nation. " § 1659. It is most fit that this judicature should, in the first " instance, have original jurisdiction of such cases, so that, if it " should not be exclusive, it might at least be directly resorted to, " when the delays of a procrastinated controversy in inferior tri- " bunals might endanger the repose or the interests of the Govera- " ment. It is well known that an arrest of the Russian Ambassador " in a civil suit in England, in the reign of Queen Anne, was well " nigh bringing the two countries into open hostilities ; and was " atoned for only by measures which have been deemed, by her " own writers, humiliating. On that occasion, an Act of Parlia- " ment was passed, which made it highly penal to arrest any " ambassador, or his domestic servants, or to seize or distrain his " goods ; and this Act, elegantly engrossed and illuminated, ac- " companied by a letter from the Queen, was sent by an " ambassador extraordinary, to propitiate the offended Czar. And " a statute to the like efiect exists in the criminal code established " by the first Congress, under the Constitution of the United " States. " § 1660. Consuls, indeed, have not in stricttiesS a diplomatic " character. They are deemed as mere commercial agents ; and " therefore partake of the ordinary character of such agents ; and " are subject to the municipal laws of the countries where they " reside. Yet, as they are the public agents of the nation to " which they belong, and are often entrusted with the perfoimance " of very delicate functions of State, and as they might be greatly " embarrassed by being subject to the ordinary jurisdiction of " inferior tribunals, state and national, it was thought highly ex- " pedient to extend the original jurisdiction of the Supreme Court " to them also. The propriety of vesting jurisdiction, in such " cases, in some of the national Courts seems hardly to have been " questioned by the most zealous opponents of the Constitution. " And in cases against ambassadors, and other foreign ministers, " and consuls, the jiuisdiction has been deemed exclusive. " S 1661. It has been made a question whether this clause, extend- " ing jurisdiction to all cases affecting ambassadors, ministers, and " consuls, includes cases of indictments found against persons for " offering violence to them, contrary to the statute of the United T T 2 G44 APPENDIX VII. " States punishing sucli offence. And it has been held that it " does not. Such indictments are mere public prosecutions, to " which the United States and the offender only are parties ; and- " which are conducted by the United States for the purpose of " vindicating their own laws and the Law of Nations. They are " strictly, therefore, cases affecting the United States ; and the " minister himself, who has been injured by the offence, has no " concern in the event of the prosecution, or the costs attending " it. Indeed, it seems difficult to conceive how there can be a " case affecting an ambassador, in the :jense of the Constitution, " unless he is a party to the suit on record, or is directly affected " and bound by the judgment. " § 1662. The language of the Constitution is, perhaps, broad " enough to cover cases where he is not a party, but may yet be " affected in interest. This pecidiarity in the language has been '* taken notice of in a recent case, by the Supreme Court. ' If a " suit be brought against a foreign minister ' (said Mr. Chief " Justice Marshall, in delivering the opinion of the Court), ' the '* Supreme Court alone has original jurisdiction; and this is shown " on the record. But, suppose a suit to be brought which affects " the interest of a foreign minister,' or by which the person of his " secretary, or of his servant, is arrested. The minister does not, " by the mere arrest of his secretary, or his servant, become a " party to this suit ; but the actual defendant pleads to the juris- " diction of the Court, and asserts his privilege. If the suit affects " a foreign minister, it must be dismissed ; not because he is a " party to it, but because it affects him. The language of the " Constitution in the two cases is different.' This Court can take " cognizance of all cases ' affecting ' foreign ministers ; and, there- " fore, jurisdiction does not depend on the party named in the " record. But this language changes when the enumeration pro- " ceeds to States. Why this change ? The answer is obvious. In " the case of foreign ministers, it was intended, for reasons which " aU comprehend, to give the national Courts jurisdiction over aR " cases by which they were in any manner affected. In the case " of States, whose immediate or remote interests were mixed up " with a multitude of cases, and who might be affected in an almost ■ " infinite variety of ways, it was intended to give jurisdiction in " those cases only to which they were actual parties.' " APPENDIX VII. 645 No. 6. DECISIONS IN THE FEENCH COURTS. Consul, when Diplomatic Agent. Tribunal Civil de la Seine {I" Chambre), (Presidence de M. Barbou.) Audience du 1 Decembre. DROIT INTERNATIONAL. — CONSUL iTRANGER. INVIOLABILIt£ DES AGENS DIPLOMATIQ0ES {g). Les relations Internationales ne peuvent etre entrave'es dans un in- teret prive. Le de'cret du 13 ventose an II, qui consacre Vinviolabilite des agens diplomatiques, s'applique a tous les agens diplomatiques sans dis- tinction, alors meme qu'il s'agit d'un agent diplomatiqtie non ac- credite en France, et qui traverse le territoire pour se rendre a son paste. " Un decret du 13 ventose an II garantit en principe rinviolahi- " lite des agens diplomatiques sans distinction. Eependant M. " Begley, consul des Etats-Unis pres le gouvernement Sarde, k la " residence de GSnes, a ete airete dernierement a Paris au moment " ou, traversant cette viUe, il se rendait a son poste, et il a ete in-;- " carc^r^ dans la maison pour dettes en vertu d'une ordonnance " rendue sur la requite de M. Piedana, creancier de M. Begley. " Aux termes d'un jugement emportant contrainte par corps, et " rendu par un tribunal des Etats Unis, M. Begley demandail " aujourd'hui sa mise en liberty en se pr^valant de sa qualite " d'agent diplomatique. " M* Dubrena, avocat de M. Begley, a pretendu, en invoquant " la loi du 13 ventose an II, que la qualite d'agent diplomatique " qui appartient a M. Begley aurait du le mettre k I'abri d'une " arrestation, car cette qualite, inseparable de la personne, la suit " dans tous les lieux ou elle reside, et meme dans le pays ou I'agent " n'est pas accr^dite et ou il tt'exerce pas ses fonctions. L'avocat " etablissait la quality d'agent diplomatique de M. Begley en lisant " una lettre de M. le ministre des affaires ^trang^res adressee a M. " le procureur du Eoi, et dans laqueUe, protestant centre I'arresta.- " tion et I'incarceration de M. Begley, il reconnatt a M. Begley la " qualite de consul des Etats-Unis k Genes. " M" Baroche, au nom de M. Piedana, creancier incarc^rateur, " a soutenu que le decret du 13 nivose an II ne pouvait s'&ppUquer (g) Gazette des Tribunam; December 2, 1840, Numero 4755. 646 APPENDIX VII. " qu'aux agens diplomatiques accr^ditfe en France, et non aux " agens sans caractfere official qui peuvent traverser le territoire. " II a soutenu, en second lieu, qu'un consul, comme M. Begley " pretend I'etre, ne saurait 6tre consider^ comme un agent diplo- " matique inviolable aux termes du d^cret de nivose an II. II " ajoutait que le passeport d^livre a M. Begley ne lui accordait " d'autre titre que celui de citoyen des Etats-Unis. " Le Tribunal, sur les conclusions conformes de M. ravocat du " Eoi, Gouin, a prononc^ en ces termes : — " ' Attendu que les relations intemationales, ne sauraient etre en- " trav^es dans un interSt priv6 ; " ' Attendu que sous la denomination g^n^rale d'agens diploma- " tiquea se trouvent compris tons les agens ayant caractfere official " ^man^ d'un souverain etranger pour servir d'iatermediaire dans " les relations de nation k nation ; " ' Attendu que Begley, en reproduisant une lettre du ministere " des affaires etrangferes de France, qui lui reconnalt la quality de " consul des Etats-Unis a Genes et de porteur de depSches diplo- " matiques, justifie suffisamment de sa quality d'agent diploma- " tique ; " ' En ce qui touche I^ demande afin d'execution provispire du " present jugement ; " ' Attendu que rexecution provisoire doit ^tre fondee par un " titre ; " ' Attendu que Begley, en justifiant de sa quality d'agent diplo- " matique qui saule doit faire ordonner sa mise en liberte, justifie " du seul titre qui puisse etre exige en paxeille matiere ; " ' Ordonne la mise en liberte de Begley, et I'execution provisoire " du jugement sur minute et avant I'enregistremenl;,' " Wife of Amhassador. Cour Soi/ale de Paris {III"' Chambre). (Presidence de M. Simonneau.) Audience du 21 Aout. AMBASSADRICE. IMMUNItIs DE l'AMBASSADEUE. — ^ACTION PERSONNELLE. — INCOMPETENCE DES TEIBXJNAUX FRANCAIS {h). 1° La femme d'un ambassadeur jouit-elle des immunite's attackees a la persorme de V ambassadeur et a Vliotel de V ambassade ? (Oui.) 2° Les peraonnes qui jouissent de ces immunites peuvent-elles y re- noncer, et peut-on exciper contre elles d'actes qui impliqueraient eette rlnonciation ? (Non.) " Que la femme d'un ambassadeur jouisse des immunitds at- (/») G«ze«e des Tribumju:, August 22, 1841. Num^ro 4982. APPENDIX VII. 647 " tach^es k la personne de son mari, c'est ce qui ne peut-etre dou- " teux, car les immunit^s couvrant toutes les personnes de la suite " de I'ambassadeur et qui habitent I'hotel de I'ambassade, k plus " forte raison doivent-elles prot^ger la femme et les enfans de " celui-ci. Mais ce qui faisait difficult^ dans I'espfece, c'^tait d'une " part, que la Baronne de Pappenheim n'iabiterait pas I'hctel de " I'ambassade, circonstance que le Tribunal de commerce avait " consid^r^e comme etablie et qu'il avait vis^e dans son jugement ; " et, d'autre part, que la Baronne de Pappenheim avait form6 op- " position au jugement qui I'avait condamnte au paiement des " trait^s et avait elle-meme cite son adversaire devant le Tribunal, " d'ou Ton tirait contre elle la consequence qu'elle en avait reconnu " la competence. " Mais sur le premier point, le fait de I'hatDitation separee de la " Baronne de Pappenheim fdt-il justifie, ne le privait pas du droit " de tirer les cons^quencea resultant de son domicile de droit k " I'hdtel de I'ambassade, la femme ne pouvant avoir d'autre do- " micile que celui de son mari. " Sur le second point, la citation par elle dorin^e devant le Tri- " bunal de Commerce pour voir statuer sur I'opposition par elle " formee au jugement au fond, ^tait d'autant moins une reoonnais- " sance de la competence du Tribunal, qu'en mgme tempa appel " etait interjete par elle du jugement sur la competence. " La Cour a prononce en ces termes : — " ' La Cour, " ' Considerant que le Baron de Pappenheim est ministre du " Grand-Due de Hesse-Darmstadt, r^sidant en France ; qti'a ce titre " il jouit des immunites accordees par le droit interiiatioBal aux " ministres des Puissances etrangeres ; que la Baronne de Pappen- " heim, sa femme, jouit des m^mes immunites ; que ces immunites " sont d'ordre public ; que ceux qui en jouissent comme represen- " tant leur gouvemement ne peuvent j renoncer, et qu'on ne peut " exciper contre eux d'aucun acte par lequel lis auraient consent! " k s'en depouiller ; " ' Qu'ainsi le Tribunal de Commerce etait incompetent pour con- " nattre d'une action personnelle dirigee contre la Baronne de " Pappenheim ; que cette incompetence etant d'ordre public, elle " peut-itre proposee en tout etat de cause, et ne saurait etre cou- " verte par le consentement que I'appelante aurait donne k plaider " devant le Tribunal ; " ' AnnuUe le jugement comme incompetemment rendu.' " (Plaidans : M"' Devesvres, pour la Baronne de Pappenheini, " appelante, et Maud'heux pour Tircin, int. — Conclusions cOn- " fonnes de- M. Berville, premier avocat-general.)" 648 APPENDIX VXII. APPENDIX VIII. Part VII. Chap. IV. Page 301. CONSULS. — DECISIONS IN THE FRENCH COURTS. Tribunal Civil de la Seine (IV"" Chambre). (Pr^aidence de M. Perrot de Ch^zelles.) Audience du 4 Aoiit, CONSUL ETEANGEK ARRESTATION PKOVISOIKE. — SAISIE CON- SERVATOIRE (a). " M. LE CoMTE D'Abaunza, Marqtiis de Fuente Hermosa, Consul " de rUraguay, habite, depuis plusieurs annees, la France en cette " qualite, at s'y est marie. " II est poursuivi par M Abrassart, marchand de meubles, pour " une creance s'elevant a plus de 5,000 fr. " M. Abrassart, se fondant sur les dispositions de la loi de 1832, " relative a la contrainte par corps k Fegavd des etrangers, a obtenu " de M. le President du Tribunal une ordonnance, en vertu de " laquelle il a fait arreter.et incarcerer son debiteur. " M. d'Abaunza a forme une demande en main-levee de I'ecrou, "et la 4^ Chambre avait a statuer sur le m^rite de cette demande. " M^ Jules Favre s'est presente pour la soutenir dans I'interet de " M. d'Abaunza. " II a developp^ a cet effet plusieurs moyens : — "1° M. d'Abaunza, comme con.std, est inviolable, etne peut-etre " soumis k la contrainte par corps. " 2° II est etranger sans doute, mais, depuis plusieurs annees il " a 6tabK son domicile en France, et c'est seulement a I'etranger " non domicilie que s'applique la loi de 1832. " 3" On ne peut I'assimiler a un debiteur forain, et, des-lors, " une saisie conseiTatoire ne pouvait etre pratiquee a son pre- " judice. " M' Bochet, avocat de M. Abrassart, a combattu ces divers " moyens. " 11 a soutenu, en premier Keu, qu'il faUait, quant h I'inviolabilit^ " de la personne, distinguer entre les ambassadeurs et les consuls : " les premiers seuls sont inviolables quand ils ont it6 le^ua et " accr^dit^s, les seconds ne le sont pas. " En second lieu, pour etre affirancU de la contrainte par corps, (a) Gazette des Tribunmi.v, August 6, 1812. Num^ro 4783. APPENDIX VIII. 649 " I'toanger doit avoir obtenu du gouvemement rautorisation " d'^tablir son domicile en France. " En troisieme lieu, le d^biteur fetranger, qui peut d'une moment " a I'autre quitter le sol qu'il habite pour transporter sa residence " ailleurs, est un veritable d^biteur forain, et conime tel soumis aux " dispositions de I'article 822 du Code de Proc^dur^ Civile. " M. le substitut Meynard de Frank, a reproduit et discut^ avec " methode et clarte les divers argumens des parties. " S'appuyant de I'autorito de Merlin et de ceUe de la jurispru- " dence, il a fait ressortir la difference de position qui existe entre " les ambassadeurs, ministres, envoy^s, residens, charg^s-d'affaires, " et les consuls. " ' Les consuls des nations ^trangeres,' a dit ce raagistrat, ' sont ^' en France ce qu'ils sont dans tous les Etats de I'Europe, des pro- " tecteurs, quelquefois juges de marchands de leur nation, d'ordi- " naire meme des marchands que Ton envoie non pour representor " leur prince aupres d'une autre Puissance souveraine, mais poui* " proteger leurs ccmpatriotes en ce qui regarde le n^goce, souvent " aussi pour donnaitre et decider des difF^rends qui peuvent s' Clever " entre eux au. sujet de ces sortes d'affaires. " ' II n'y a pas de consuls, m^me parmi ceux a qui des trait^s " exprfes attribuent la quality de juges, qui aient, a I'instar des " ambassadeurs, le caractere representatif, d'ou d^coule essentielle- " ment I'independance de I'autorito locale. " ' Aussi, quoiqu'il soit de regie constante qu'un ambassadeur ne " peut-^tre traduit devant les Tribnnaux du pays ou il reside " comme tel pour raison des dettes qu'il a contractOes envers lea " habitans de ce pays, il est certain qu'il en est .autrement des consuls, " qui tous les jours sont citfe dans nos Tribunaux a la requite des " Fran9ais envers lesquels ils se sont obliges.' (Aix, 14 Aodt " 1829.— Paris, 26 Mars 1840.— 28 Avril 1841.) " M. I'avocat du Eoi s'explique ensuite sur la seconde question " relative a la maniere dont I'^tranger doit avoir domicile Otabli " en France pour Ochapper k la contrainte par corps. " Analysant et combinant d'une part les dispositions des lois de " 1807 et de 1832 sur la contrainte par corps, de I'autre les diverses " decisions des Cours sur I'application de ces lois, le ministere " public en conclut que I'autorisation du gouvemement n'est pas " rigoureusement nOcessaire, et qu'il appartient aux Tribunaux " d'apprOcier les circonstances d'apres lesquelles I'etranger doit etre " considOre comme ay ant, ou non, son domicile en France. (Cassa- " tion, 20 Aout 1811.— 6 Fevrier 1826.-15 Mars 1831.) *' M. I'avocat du Eoi estime que, dans I'espfece, M. d'Abaunza, " qui reside en France depuis 1833, qui s'y est marie, qui y est " attache comme ctonsul de I'Uraguay, justifie sufSsamment qu'il y a " son domicile, et que sous ce rapport, il doit Stre affranchi de con- " trainte par corps. 650 APPENDIX VIII. " II ne saurait, par la m^me raison, Stre consid^r^ comme un " d^biteur forain, et des-lors la saisie conservatoire pratiqu^e sur " lui est nulle. " Apr^a en avoir deliber^, le Tribunal : — " ' Attendu que si les agens diplomatiques jouissent de certaines " immunit^s, c'est parce qu'ils repr^sentent leur gouvemement vis- " &-vis d'un autre gouvemement, mais que les simples consuls ne " peuvent, sous ce rapport, pr^tendre k aucune assimilation, puis- " qu'ils ne sont que des fonctionnaires dfl^gu^s pour prot^ger et " r^gler les interets priv^s de leurs nationaux ; " ' Qu'ainsi la qualite d'agent consulaire, que reclame Carlier " d'Abaunza, ne saurait I'afFrancliir de I'exercice des poursuites " dirigees centre lui par Abrassart ; " ' Attendu que la residence prolong^e d'un Stranger et mSme " son mariage en Prance ne sauraient lui faire obtenir lea droits " resultant de I'^tablissement du domicile, qui ne pent avoir lieu " que dans les termes prevus par I'article 13 du Code Civil, c'est-a- " dire, avec Tautorisation royale ; " ' Que, suivant les termes de I'article 16 de la loi du 17 Avril " 1832, un ^tablissement du commerce ou la propriety d'immeubles " sur le territoire Fran9ais, qui supposent dans ces deux cas une " longue residence, n'ont pour effet que de mettre I'etranger a " I'abri d'une arrestation provisoire, mais ne I'afirancliissent pas de " la oontrainte par 0013)8 exero^e dans les termes de Tarticle 14 de " la meme loi, et qui est la consequence de la qualite d'etranger. " ' D^boute Carlier d'Abaunza de sa demande afin de mise en " liberty et de nuUite d'^crou, etc' " Cour Eoyale de Paris {IIF^ Chambre). (Pr^sidence de M. Simonneau.) Audience de 28 Avril. LIQUIDATEUR CHARG:^ DE G^RER. — ACTES DE GESTIOW.— ACTION PER- SONNELLE. — QUALITE DE CONSUL. — CONTRAINTE PAR CORPS (J). 1° Le liquidateur d^une societe, charge en outre de gerer et admi- nistrer Vetablissement social sous sa responsabilite person- nelle, est-il personnellement tenu et par corps des engagemens par lui souscrits ? (Oui.) 2° La qualite de consul d'une Puissance e'trangere dont ce liqui- dateur serait revefu, le soustrairait-elle a la contrainte par corps? (Non). " AiNsi jug6 par I'arret suivant : — " ' La Cour, en ce qui touche I'appel principal. (i) Gazette des Tribmmuv, May 0, 1841. Num^ro 4390. APPENDIX VIII. 651 " ' Consid^rant qu'Hermann Belong n'a pas iti seulement nomm^ " liquidateur, mais qu'il a et^ charge de g^rer et administrer I'eta- " blissement sous sa responsabilit^ personnelle ; qu'il a accept^ " cette double mission et a fait des actes de gestion. " ' En ce qui touche I'appel incident de BoulM et Filon. " ' Consid^rant que, quand Belong justifierait de sa quality de " consul, cette quality ne lui donnerait pas le caractere d'agent " diplomatique, et qu'il ne jouirait pas des immunity accord^es k " ce titre ; que par consequent. Belong peut-etre soumis a la con- " trainte par corps. " ' Confirme sur I'appel principal, infirme sur Tappel incident.' " (Plaidans : M' Poulain pour Hermann Belong appelant, et M^ " Burand-St-Amand pour Boull^ et Filon, int.) Appeal in Case ofD'Abuanza. Cour Eoyale de Paris {II'"' Chambre). (Pr&idence de M. Algier.) Audience du 25 Aout. CONSUL. CONTEAINTE PAR CORPS. DOMICILE DE l'^TEANGER.— DISbITEUR FORAIN (c). 1° Les consuls etrangers, sans mission diplomatique, ne participent point aux immunite's dont jouissent les amhassadeurs et envoyes des Puissances etrangeres ; en tous cas, ils ne peuvent exciper de Imr qualite devant les Ti-ihunaux qu^autant quails ant regu Z' exe- quatur du gouvernement Franqais. 2° Une residence prolongee en France, un e'tahlissement par mariage, ne suffisent pas pour constituer en faveur de I'etranger un domi- cile legal de nature a I'affranchir de la contrainte par corps ; le domicile exigepar Varticle 14 de la hi du 17 Avril 1832, ne peut- etre acquis qu^aux. conditions impose'es par Varticle 13 du Code Civil, 3° I2etranger non domicilie en France, et qui n'y possede ni im- meuble, ni e'tablissement, peut-Stre considere comme debiteur forain dans le lieu meme oii il a e'tabli sa residence, et est des-lors pas- sible de saisie conservatoire. " M. Caelier d'Abaunza, Marquis de la Fuente Hermosa, Espa- " gnol de naissance, habite Paris depuis 1833. II n'a obtenu k " aucune ^poque I'autorisation du roi d'^tablir son domicile en " France ; mais il s'est mari^ k Paris, et a continue d'y insider sans " interruption. Sans profession jusqu'alors, M. Carlier d'Abaunza " a ^t^ pourvu en 1840 du titre de consul-general de la r^publique (c) Gazette des Trihunaux, September 5 and 6, 1842. Num^ro 4809, 652 APPENDIX VIII. " orientale de I'Uraguay, et quoiqu'il n'ait point encore obtenu " d'exequatU7- du gouvernement Pran9ais, il serait en ce moment, " d'apres sa pretention, charg^ des fonctions de ministre plteipo- " tentiaire de I'Uraguay, en I'absence du titulaire. C'est dans ces " circonstances que M. Carlier d'Abaunza a et^ incarc^r^ provi- " soirement en quality d'etranger, et que le mobilier gamissant son " appartement a ete frapp^ d'une saisie consei-vatoire, k la requete " de Abrassart, son tapissier, creancier d'une somme assez im- " portante pour travaux et fournitures de son etat. " Sur la demande en condaranation et en validite de la saisie " form^e par le creancier, M. d'Abaunza a forra^ reconventionnelle- " ment une demande en nullite de I'ecrou et de la saisie conser- " vatoire, se fondant 1° sur sa quality de consul-general de I'Ura- " guay, et sur I'inviolabilite qu'elle doit assurer a sa personne ; 2° " sur sa residence prolongie en France et le domicile de fait et " d'intention qu'il soutient y avoir acquis ; 3° enfin, sur I'exagera- " tion du prix des fournitures et la dissimulation des a-comptes " payes. " Sur ces contestations, dont nous avons deja rendu compte dans " la Gazette des Tribwicmx, lorsqu'elles se sont presentees en pre- " miere instance, est intervenu le jugement suivant : — " ' Attendu que si les agens diplomatiques jouissent de certaines " immunites, c'est parce qu'ils repr^sentent leur gouvernement vis- '' a-vis d'un autre gouvernement, mais que les simples consuls ne " peuvent, sous aucun rapport, pretendre a aucune assimilation, " puisqu'ils ne sont que des fonctionnaires d6legues pour proteger " et regler les int^rets priv^s de leurs nationaux ; " ' Qu'ainsi la qualite d'agent consulaire que reclame Carlier " d'Abaunza ne saurait I'afiranchir de I'exercice des poursuites di- " rigees centre lui par Abrassart ; " ' Attendu que la residence prolongee d'un etranger, meme son " mariage en France, ne sauraient lui faire obtenir des droits resul- " tant de I'etablissement du domicile, qui ne peut avoir lieu que " dans les termes prevus par I'art. 13 du Code Civil, c'est-a-dire, aveo " I'autorisation royale; " ' Que suivant les termes de I'art. 16 de la loi du 17 Avril 1832, " un etablissement de commerce ou la propriety d'immeubles sur " le territoire Fran9ais, qui supposent dans ces deux cas une longue " residence, n'ont pour effet que de mettre I'etranger a I'abri d'une " arrestation provisoire, mais ne I'affrancliissent pas de la contrainte " par corps exercee dans les termes de I'axt. 14 de la meme loi, et " qui est la consequence de la quality d'etranger. " ' En ce qui touche la saisie conservatoire formee sur le mobilier " d'Abaunza; " ' Attendu que sa qualite d'etranger etant ^tablie, le sieur Abi-as- " sart avait le droit de former une saisie conservatoire sur le APPENDIX VIII. 653 '' mobilier de son d^biteur, qui doit etre consid^r^ comme debiteur " forain ; " ' Le Tribunal deboute Carlier d'Abaunza de sa demande en " nullity d'ecrou ; le condamne par corps a payer a Abrassart la " somme de 2,700 francs, k laquelle le Tribunal reduit le montant " des fournitures faites; declare la saisie conservatoire bonne et " valable, etc' " Appel. " M* Jules Favre, pour M. Carlier d'Abaunza, a soutenu que " soit comme consul, soit comme Stranger domicilii, le sieur Carlier " d'Abaunza etait aifianchi de la contrainte par corps prononc^e " par la loi du 17 Avril 1832. " 'La personne des agens diplomatiques,' a dit le defenseur, ' est " inviolable. C'est un privilege qui resulte de leur caractere " mfeme, et de I'autorite qui leur est conferee par leurs lettres de' " creance. Les publicistes donnent pour raison de cette inviola- " bilite qu'on pourrait leur imputer des crimes s'ils pouvaient ^tre " punis pour des crimes : qu'on pourrait leur supposer des dettes " s'ils pouvaient etre arr^tes pour dettes. II faut done suivre vis- " a-vis des ambassadeurs les regies tiroes du droit des gens, et non " celles qui d^rivent du droit politique.' (V. Wicquefort; M. " Pardessus, 1448 ; et un decret de la Convention du 13 ventose " an 11.) " Ce principe pose, le defenseur s'efforce de prouver que le titre " de consul-g^n^ral, dont est revetu son client, suffit pour assurer " I'inviolabilit^ de sa personne, independamment de V exequatur " qu'ii avoue n'avoir point encore ete obtenu par M. Carlier d'A- " baunza. " En second lieu, M° Jules Favre s'appuie sur I'autorite de Mer- " lin pour soutenir que les Tribunaux ont plein pouvoir pour deci- " der, d'apres les circonstances, si la residence prolongee d'un " Stranger en France n'equivaut pas au domicile exige par les lois " de 1807 et de 1832 pour aifranchir I'etranger de la contrainte par " corps. II cite par induction deux arrets de la Cour de Cassation " des 20 Aoiit 1811, et 6 Fevrier 182G, un arret de la Cour de Paris « du 15 Mars 1831. " ' Enfin,' dit le defenseur, ' si I'habitation continue de I'etranger " suffit poiu: lui conferer un domicile suffisant au point de vue de la " contrainte par corps, on ne pent, sans torturer le sens de la loi, " considerer I'etranger dans le lieu meme de sa residence comme " un debiteur forain.' " M^ Bochet, pour M. Abrassart, a reproduit les argumens de la " sentence. " ' M. Carlier d'Abaunza,' a dit le defenseur, ' se prevaut d'immu- " nites auxquelles il n'a aucun droit. S'il a le titre de consul de " I'Uraguay, il n'en a jamais exerce legalement les fonctions, en " supposant qu'il les ait jamais exercdes, par ,1a raison que le gou- 654 APPENDIX VIII. " vernement Fran9aia lui a refuse Vexequatur. En effet, M. le " ministre des affaires ^trangferes a certifi^ ce fait dans une lettre " adressee, a I'occasion du proces, a M. le procureur du Eoi, et " a ajout^ que M. d'Abaunza n'avait aucun droit aux privileges " dont jouissent les agens diplomatiques. Soutenir que le refus " d'exequaiur est chose indi£E^rente, et que les seules lettres de " cr^ance, dont M. Carlier peutetre porteur, sufEsent pour lui as- " surer les immunit^s des envoyes des Puissances ^trangeres, c'est " dire qu'un gouvernement etranger aurait le droit d'installer chez " nous, et malgr^ nous, un de ses nationaux, et de I'affiranchir des " lois qui r^gissent tous les Strangers en France. " 'D'ailleurs,' ajoute le defenseur, 'un consul n'est pas un agent " diplomatique. (V. Vattel, Droit des Gens, liv. 4, ch. 5 : ordon- " nance de 1681 ; Cassation, 13 vendemiaire an IX ; Aix, 14 Aoiit " 1829 ; Paris, 28 Avril 1841.) ' " Sur le second moyen, le defenseur invoque I'autorite de toua " les auteurs, Merlin excepte, et deux arrets de la Cour de Paris, " des 16 Aodt 1811, et 2 Mai 1834, pour ^tablir qu'en matiere de " contrainte par corps le seul domicile dont puisse exciper I'etran- " ger en France, est celui qu'il acquiert conformement a I'article " 13, du Code Civil, c'est-a-dire, avec I'autorisation du roi. II " soutient, par les mSmes motifs, que I'^tranger qui n'a pas de do- " micile legal en France, et qui n'y possede ni immeubles ni efca- " blissement de commerce, doit etre assimUe au debiteur forain. " La Cour, sur les conclusions conformes de M. I'avocat-general " Boucly, a statue en ces termes : — " ' Consid&ant que si Carlier d'Abaunza a re9u de la republique " de rUraguay une commission de consul-general a Paris, il est " certain qu'il n'a pas obtenu Vexequatur du gouvernement du loi ; " que des-lors il n'est pas fonde a pretendre aux prerogatives et " immunites qui peuvent appartenir aux consuls ; " ' Consid^rant que I'appelant ne justifie pas qu'il soit domicilie " en France ; " ' En ce qui touche la saisie foraine : " ' Adoptant les motifs des premiers juges, " ' Confirme.' " APPENDIX IX. Part VIII. Chap. III. Page 338. INTEKNATIONAL RELATIONS OF FOEEIGN SPIRITUAL POWERS WITH THE STATE.- THE POPE. No. 1. Since the accession to the Papacy of Pius IX. changes, the im- portance of which is as yet but partially and dimly seen, have taken place with respect both to the Temporal and Spiritual relations of the Pontiff of the Latin Church, which, directly or indirectly, aflfect his International status. APPENDIX IX. 655 The International jurist who considers the change effected in his Temporal position must bear constantly in mind these historical facts :— 1. That, since the beginning of this century, at least, to go no further back, the position of the Pope as a temporal prince has been maintained, when maintained at all, by the intervention of foreign troops, owing allegiance to a foreign State. 2. That the incor- poration of the Papal dominions, like those of the other Italian princes, into the Kingdom of Italy, has been as much effected by the will of the subjects of that dominion, as the placing of the Hanoverian princes on the throne of England, the establishment of the Eepublic in the United States of America, or the recent accession of a prince of the House of Savoy to the throne of Spain — all facts recognized by the States of the civilized world — have been effected by the deliberate will of the subjects of the countries in which theSe changes were made. 3. That, since 1848, the Pope has admitted that, without the aid and protection of a foreign army, he cannot govern Rome as a temporal prince. "With respect to the Spiritual position of the Pope, the new pre- tensions, or the revival of obsolete and practically-abandoned pre- tensions, have been such as to affect or concern the ciyil governments of foreign States. Certain new dogmas have been recently promulgated in public instruments by the Pope ; the Immaculate Conception ; those contained in the Encyclic Quanta cura, and its Syllabus, which condemned, and, by necessary implication, if not directly, incul- cated disobedience to, the law of foreign States; the personal Infallibility of the Pope, set forth in the Constitutio dogmatica (cap. iv.) beginning Pastor cetemus. These promulgations have awakened the vigilance of foreign Governments, and abeady induced that of the (North) German Empire to make a very material alteration in the civil adminis- tration of the affairs of the Eoman Catholic clergy (o) ; an alteration partly grounded on the fact that the new dogmas have created a (o) The Prussian Minister of Worship and Education (Cultus minis- terium) has, during the present reign, discharged the duties of his office with the aid or incumbrance of separate denominational boards — Roman Catholic and Protestant. These hoards are now abolished. " In dem bekannten Erlass des Oultusministeriums u. s. w., die Auf- " stellung einer Unterscheidung zwischen der romisoher Kirche var imd " der Kirche nach dem Juli v. J, (i.e. 1870). Vor dem 18 Juli — so sagt " man — sei die romiache Kirche eine festbestimmte gewesen, nach dem, " 18 Juli habe sich nicht nur eine wesentliche anderung erfahren sondern " sie sei auoh gewissermassen ins Unsgewisse gefallen, weil nunmehr des " Papst sobald er ex-eathedrd rede abstract gesprochen, taglich neue " Glaubenssatze aufsteUen kdnne welch e von allenAngehorigen der Kirche " als solche anzunehmen seien. . . . Selbst im gegenwartigen Falle hat " die preussiche Staatsregierung der Verkiindung der neuen Dogmea 656 APPENDIX IX. division, already large, and said to be increasing, among Roman Catholics : those who refuse to recognise and adopt the novelties calling themselves Old Catholics, inasmuch as they claim to stand upon the old paths of their Church, and designating those who accept the novelties as new Catholics. Austria, since the decree of Infallibility, has abandoned her con- cordat with Borne. Bavaria, perhaps regretting that she did not follow Prince Hohenlohe's advice, is now hesitating as to the course which she must take ; while the choice of the most learned, pious, and excommunicated Dbllinger as Eector of the University of Munich i.s a circumstance of no mean significance. In these Commentaries a full investigation of this grave subject would be, I think, improper ; but, at all events, would require more space than can be allotted to it. Certain instruments having an important though indirect bearing upon the International relations of the Papacy are here printed ; and 1 have thought that the following chronicle or catalogue may be useful to those who wish to penetrate further than I am able to do in this work into the International Ecclesiastical history of this eventfiil period. Dates of Important Events affecting the Relations of the Pope with Foreign States, 1845-1871. 1845. Eossi (French ambassador at Eome) to Guizot. (Guizot, Mem. vii. 400). 1846, November 9. Pius IX. becomes Pope. (Ann; Eeg. 1846.) 1848. Pope promises new constitution to his subjects. Kossi assassinated. Pope flies from Eome to Gaeta. (lb. 1848.) 1849, Jan. 5. Viscount Palmerston to Marquis of Normanby. (Pari. Papers, 1849.) Jan. 28. Same to same. Feb. 2. Prince Castelcicala to Viscount Palmerston. Feb. 10. Viscount Palmerston to Prince Castelcicala. March 6. Apostolic Nimcio at Paris to Marquis of Nor- manby. March 27. Viscount Palmerston to Marquis of Normanby. French troops enter Rome; restore Papal Government. 1856. Note or Protest of Cavour to the Congress of Paris on the state of Italy (Ann. Eeg. 1856). " keinerlei Hindernisa in den Weg gelegt : erst dann, als thatsachlich das " hervortrat, was vorher befurchtet wor, dass das neue Dogma derUnfehl- " barkeit einen Conflict mit der Staatsgewalt hervorrief— das sicherste " Zeichen dafiir, dass das Dogma nicht allein die Kirche sondem auch den " Staat beriihrt^erst dann die Regierung zur Sache Stellung genoiiimen, " um das Recht des Staates gegen einbn Uebergriif der Kirche zu ver- " tlieidigen." — Norddeutsche Allgemeine Zeitung, Nr. 170, 25 Jiili. Berlin, 1871. See also Nr. 173, 28 Juli ; Nr. 169, 24 Juli. APPENDIX IX. 657 1859. Battle of Magenta and its consequences. Cardinal Antonelli's Circular invoking support of European Powers. Assembly of Romagna " refuse to live any longer under " temporal sway of the Pontiff." (76. 1859.) 1860. Central and South Italian States incorporated in Kingdom of Italy. {lb. 1860.) 1861. March 14. Cavour proposes and carries by the unanimous vote of the Chamber of Deputies, " that the King Victor " Emanuel take for himself and his successors the title of "King of Italy." (75.1861.) 1864, September 15. Convention between France and Italy as to " the present territory of the Holy Father and the with- " drawal of the French troops." {lb. 1864.) This was followed by : — 1864, December 8. The Encyclic Quanta Cura, with its Syllabus. 1865. Ddpeche de M. Drouyn de Lhuys k I'Ambassadeiu: de France a Madrid. (Livre jaune, 1866-4). October 6. Letter of Pius IX. reproving the Archbishop of Paris for holding Galilean opinions. (0££. Aktenstucke, 9 5 ; Compte Eendu, E. Ollivier, App.) 1866, November. Circular of Eicaaoli to Italian Prefects as to Eome. 1867. French troops again enter Eome. 1869, April 9. Circular letter of Prince Hohenlohe as to the course which Independent States ought to adopt with reference to the Vatican Council. December 8. Vatican Council assembles at Eome. 1870, May 1. The Constitutio Dogmatica, cap. iv. Pastor ceternus, containing the decree "Z)e Romani Pontificis Infallibilitate" proposed. July 13. Infallibility of thePope voted by majority of Council. Austria renounces her concordat with Eome. August 29. Circular of Italian Minister (Visconti Venosth) to Italian ministers in foreign States. (Pari. Papers, 1870-1). September 8. Letter of King of Italy to the Pope. September 11. Answer of the Pope. September 22. M. S^nard, minister of the French Eepublic at Florence, writes that " the Convention of 15 September " has virtually ceased to exist." October 9. Plebiscite of Eomeandthe provinces desiring union with and incorporation into the Kingdom of Italy accepted and decreed by Italian Government. October 17. Circular of Cardinal Antonelli to Papal Nimcios abroad. October 18. Letter from Italian Minister for Foreign Affairs to Italian ministers in Foreign States. VOL. II. U U 658 APPENDIX IX. 1870, November 8. Letter of Italian Minister at Brussels to Italian Minister for Foreign Affairs. November 14. Letters from Italian Minister at Madrid to Minister of State at Madrid. 1871, May 13. The Italian "Statute of Guarantees" as to the future relations of the Pope with the Italian Government. May 15. Papal Allocution thereupon. July 3. L' insediamento della sede del Governo in Eoma Capitale del Regno. (Gazzetta Officiale, Eoma, 7 Luglio.) First Council of Italian ministers under the King of Italy, in the Quirinal Palace at Rome. July 22. Debate in the Assemblee Nationale of France as to taking measures, in concert with other States, to restore Rome to the Pope. No. 2. Letter to Guizotfrom Bossi at Eome.* AprU 27, 1845. " Les choses sont toujours dans un tot deplorable, et il n'y a, en " ce moment, point d'amelioration k esperer. Bien loin de songer " h seculariser I'administration civile, le Pape ne veut employer, " meme parmi les pr^lats, que ceux qui se sont faits pretres. A " cela s'ajoute I'absence de tout apprentissage et de toute carriere " r^gulifere. Un pr^lat est apte k tout. Le president des armes " etait un auditeur de rote. C'est comme si nous prenions un con- " seiller de cassation pour lui confier I'administration de la guerre. " Quant aux finances, c'est une plaie dont personne ne se dissimule " la gravite. On marche aujourd'hui a I'aide d'un expedient. Le " gouvernement a achete I'apanage que le prince Eugene de Beau- " harnais avait dans les Marches. II I'a immediatement revendu k " une compagnie compos^e de princes remains et d'hommes d'affaires. " Les acheteurs verseront le prix dans le tresor pontifical en plu- " sieurs payements, longtemps avant I'epoque ou le gouvernement " pontifical devra payer la Bavi^re. C'est la I'exp^dient. En defi- " nitive, c'est un emprunt fort cher. " Cette situation se complique des je'suites. lis sont mile's ici a tout, " lis out des ahoutissants dans tous les camps ; its sont pour tous un " sujet de crainies ou d'esperances. Les observateurs superficiels " peuvent facilement s'y tromper, parceque la Soci^te de J^sus " pr^sente trois classes d'hommes bien distinctes. Elle a des hommes " purement de lettres et de sciences, qui devinentpeut-^tre les m^n^es " de leur compagnie mais qui y sont Strangers et peuvent de bonne " foi affirmer qu'ils n'en savent rien. La seconde classe se compose * See p. 415, note (g). APPENDIX IX. 659 d'hommes pieux et quelques peu cr^dules, sincferement convaincus de la parfaite innocence et abnegation de leur ordre, et qui ne voient, dans les attaques centre les j^suites, que d'affreuses ca- lomnies. Les premiers attirent les gens d'esprit, les seconds ]ea ames pieuses. Sous ces deux couches se cache le j^suitisme pro- prementdit, plus que jamais actif, ardent, voulant ce que les j^suites ont toujours voulu, la centre-revolution et la theocratic, et con- vaincus que dans peu d'ann^es ils seront les maitres. Un de lenrs partisans, et des plus habiles, me disait hier a moi-meme : ' Voua verrez, Monsieur, que, dans quatre ou cinq ans, il sera tobli, m§me en France, que I'instruction de la jeunesse ne pent appar- tenir qu'au clerge.' II me disait cela sans provocation aucune de ma part, uniquement par I'exub^rance de leurs sentiments dans ce moment. Ds croient que des millions d'hommes seraient prets k faire pour eux en Europe, ce qu'ont fait les Lucernois en Suisse. " C'est li un reve : il est vrai, au contraire, que I'Dpinion gen^- rale s'el^ve tous les jours plus redoutable centre eux, mfime en Italic ; mais il est ^galement certain qae leurs moyens sont consi- derables ; ils disposent de millions, et leur fonds augmentent sans cesse ; leurs affili^s sont nombreux dans les hautes classes ; en Italie, ilsjes ont trouv^s particulierement a Eome, a Modene et a Milan. A Milan on tient des sommes enormes a leur disposition, pour le moment, ou ils pourront s'y ^tablir et s'en servir. Je sais dans quelles mains elles se trouvent. Ici, ils sont mattres absolus d'une partie de la haute noblesse qui leur a livre ses enfants. " Ce qui est important pour nous, c'est qu'il est certain et en quelque sorte notoire que leurs efforts se dirigent en ce moment, d'une maniere toute particulifere, vers deux points, la France et le futur Conclave. Au fond, ces deux points se confondent, car c'est surtout en vue de la France qu'ils voudraient un Pape qui leur ffit plus infeode que le Pape actuel. " Je suis convaincu que le Saint-Pere ne se doute pas de toutes leurs m^n^es et de tous leurs projets. Je vais plus loin; je crois qu'il en est de meme de leur propre general, le pfere Eoothaan ; je ne le cormais pas ; mais d'aprfes tout ce qu'on m'en dit, il est comme le Doge de Venise dans les derniers siecles ; le pouvoir et les grands secrets n'^taient pas a lui ; ils n'appartenaient qu'au conseil des Dix. " Telle est la situation g&^rale. Voici la notre. Votre Excel- lence me permettra de lui parler avec une entiere franchise ; il est important de ne pas se faire d'illusion sur un ^tat de choses qui peut devenir grave d'un instant k I'autre. " Le Saint-Pere et le gouvernement pontifical sont p^n^tr^s d'une admiration sincere pour le Eoi, pour sa haute pens^e, pour le systeme politique qu'il a fait prevaloir. Sans bien comprendre tous les dangers qu'on avait a vaincre, toutes les difEcultes qu'on a dft surmonter, ils.sentent confusement qu'ils ^taient au bor.d d'un V V 2 660 APPENDIX IX. " abime, et qu'ils doivent leur salut h la politique du gouvemement " du Roi. " Leur reconnaissance est vraie, mais elle n'est ni satisfaite, ni " ^clair^e. Parce qu'on a arrets I'esprit de revolution et de d^- " sordre, ils sont convaincus qu'on peut faire davantage et revenir " vers le pass^. Tout ce qu'on a fait pour eux n'est pour eux qu'un " Ji-compte. Ignorant jusqu'aux choses les plus notoires chez nous, " ne voyant la France et I'Europe qu'i, travers trois ou quatre m^- " chants journaus, ne recevant d'informations detaiU^es que d'un " c6te, car les hommes senses et mod^r^s n'osent pas tout dire, de " peur d'etre suspect^s et annihiMs, les chefs du gouvernement pon- " tifi<»l partagent au fond, dans une certaine mesure, les esperances " des fanaliques ; seulement, il n'ont pas la meme ardeur, la meme " impatience ; ils comptent sur le temps, sur les evtoements, sur leur " propre inaction ; ils se flattent de gagner sans jouer. Us ne feront " rien centre le Eoi, sa dynastie, son gouvernement ; mais ils aime- " raient bien ne rien faire aussi qui p(it d^plaire aux ennemis du " Roi, de la France, de nos institutions. Tout ce qu'ils ont de " lumi^re, de raison, de prudence politique, est avec nous et pour " nous ; leurs antecedents, leurs prejug^s, leurs souvenirs, leurs " habitudes sont contre nous. Quand on pense que c'est a de vieux " religieux que nous avons a faire, on comprend combien il est " difficile de leur faire sentir les necessit^s des temps modemes et " des gouvemements constitutionnels ; nous ne leur parlous que de " choses obscures pour eux et desagreables ; nos adversaires ne les " entretiennent que de pensees qu'ils ont toujours nouiTies ; nous " contrarions tous leurs souvenirs et leurs penchants ; nos adversaires " les reveiUent et les caressent. " Dans cet etat de choses, ce n'est pas par quelques entretiens " officiels, de loin en loin, avec le cardinal-seor^taire d'fitat et le " prtfet de la Propagande, qu'on peut traiter ici avec succes les " affaires du Eoi. II n'y a ici ni une cour, ni un gouvernement tels " qu'on en voit et con^oit aiUeurs. II y a un ensemble tres-com- " pliqu6 et sui generis. Le mode d'action ne peut pas etre ici le " mSme que partout ailleurs. " Sans doute a la rigueur, grace i I'autorite morale du Eoi et a " I'importance politique de la France, il ne serait pas impossible " d'enlever ici une question comme a la pointe de Tepee. Quand " on ne leur laisserait absolument d'autre choix que de c^der ou de " se brouiiler avec la France, ils c^deraient. Mais ce moyen violent " ne pourrait etre employ^ que dans un cas extreme, et les excep- " tions ne sont pas des regies de conduite. " Comme r^gle de conduite, il ne feut pas oublier que rien d'im- " portant ne se fait et ne s'obtient ici que par des influences indi- *' rectes et varices. Ici les opinions, les convictions, les determina- " tions ne descendent pas de haut vera le bas, mais remontent du " bas vers le haut. Celui qui, par une raison ou par une autre. APPENDIX IX. 661 " plait aux aubaltemes ne tarde pas k plaire aux maitres. Celui " qui n'a plu qu'aux maitres se trouve bientot isoM et impuissant. " Les influences subaltemes et toutes-puissantes sont de trois " especes : le clerg^, le barreau et les hommes d'afiaires, ce qui " comprend les hommes de finance et certains comptables, race par- " ticuliere a Rome, et qui exerce d'autant plus d'influence qu'eUe " seule connalt et fe,it les affaires de tout le monde. Qu'une v6rit6 " parvienne a s'^tablir dans les sacristies, dans les etudes et dans les " computesteries, rien n'y r^sistera et r^ciproquement. " Votre Excellence voit des lors quel est le travaU a entreprendre " ici si on veut r^eUement se mettre a meme de faire les affaires du " Eoi et de la France sans violence, sans secousse, sans bruit. Je " dois le dire avec francbise; oe travail n'a pas meme ^te com- " menc6. J'ai trouv^ I'ambassade toute entifere n'ayant absolument " de rapport qu'avec les salons de la noblesse qui sont, comme j'ai " d^ja eu I'honneur de vous recrire, compMtement etrangers aux " affaires et sans influence aucune. Je les fr^quente aussi, et je " vois clairement ce qui en est. Un salon politique n'existe pas " k Eome, " Get ^tat de cboses me semble facheux et pourrait devenir un " danger. Les amis de la France se demandent avec inquietude " qu'elle serait^on influence ici si, par malheur, un conclave venait " a s'ouvrir. A la v^rit^, la sant6 du Saint-P4re me parait bonne ; " il a bien voulu m'en entretenir avec detail, et la gaiete mSme de " I'entretien confirmait les paroles de Sa Saintet^. H n'en est pas " moins vrai qu'il y a ici des pex-sonnes alarmees ou qui feignent de " I'etre ; elles vont disant que I'enflure des jambes augmente, que le " courage moral soutient seul un physique delabre et qui pent " tomber a chaque instant. Encore nne fois, ces alarmes me pa- " raissent fausses ou prematur^es ; en parlant de ses jambes, le Pape " m'a dit lui-meme que, trfes-bonnes encore pour marcher, elles " ^taient un peu roides pour les genuflexions, et que cela le fatiguait " im peu. A son Sge, rien de plus naturel, sans que cela annonce " une fin prochaine. Quoiqu'il en soit, I'ouverture prochaine d'un " conclave n'est pas chose impossible et qu'on puisse perdre de vue. " Dans r^tat actuel, nous n'aurions pas meme les moyens de savoir " ce qui s'y passerait ; notre influence serait nulle." (Guizot, Memoir e de mon Temps, tome vii. pp. 400 to 406.) 662 APPENDIX IX. No. 3. CORRESPONDENCE OF THE ENGLISH SECRETARY OF STATE FOR FOREIGN AFFAIRS, KESrECTING THE AFFAIRS OF ROME, PRESENTED TO PARLIA- MENT, 15TH JUNE, 1849. No. I. Viscount Palmerston to the Marquis of Normanhy. " Foreign Office, January 5, 1849. "(Extract.) " In regard to the present position of the Pope, I have to ob- " serve that no doubt it is obviously desirable that a person who in " his spiritual capacity has great and extensive influence over the " internal affairs of most of the countries in Europe, should be in *' such a position of independence as not to be liable to be used by " any one European Power as a political instrument for the annoy- " ance of any other Power; and in this view it is much to be wished " that the Pope should be sovereign of a territory of his own. " On the other hand, if it be admitted as a general principle, " that questions and differences between the people and the sove- " reign of each State should be left to be settled by those parties " without the interference of any foreign armed force, it is not easy " to see, in the peculiar position of the Pope with regard to his "^ subjects, what shoiild make the Eoman States an exception to this " general rule. " The main circumstance in which the relations between the " Pope and his subjects differ from the relations which subsist be- " tween other Sovereigns and their subjects, is that the Pope does " not reign either by hereditary right or by the choice of the people " whom he governs, but that he is elected by the College of Cardi- " nals, a body which is not in its constitution national, which is I " believe self-elected, and of which about a half are not natives of "the State for which they choose the sovereign. " These circumstances would seem to render it the more incum- " bent on the Pope to give to his subjects the requisite securities for " good government, and these circumstances would also appear to " render it the less justifiable for any foreign Powers to use armed " interference in order to assist the Pope in maintaining, if he were " so disposed, a bad system of government. No. II. Viscount Palmerston to the Marquis of Normanhy. " Foreign Office, January 28, 1849. " (Extract.) " With regard to the proposal made by Austria to Prance for a " combined military action by Austria, France, and Naples, for the APPENDIX IX. 663 " purpose of re-establishing the Pope in the Roman States, your " Excellency will say that Her Majesty's Government concur with " the Government of France in viewing with much regret this an- " nouncement of the wishes and intentions of the Austrian Govern- " ment. Her Majesty's Government do not pretend to pass judg- " ment in respect to those differences between the Pope and his " subjects which led to the retirement of the Pope to Gaeta ; but " Her Majesty's Government would upon every account, and not " only upon abstract principle but with reference to the general " interests cf Europe, and from the value which they attach to the " maintenance of peace, sincerely deprecate any attempt, to settle " the differences between the Pope and his subjects by the military " interference of foreign Powers. " It appears to Her Majesty's Government, as at present in- " formed, that those differences are not of such a nature as to pre- " elude the hope that they might be accommodated by the diplomatic " interposition of friendly Powers, and it is needless to observe how " much better such a mode of settlement would be than an autho- " ritative imposition of terms by the force of foreign arms. " With respect to the attitude which Great Britain would in any " case assume in regard to these affairs, your Excellency will say " that the attitude of this country would be that of observation, " and that Great Britain could take no part in such matters beyond " expressing, if it should appear to be necessary, the opinion which " Her Majesty's Government might entertain thereupon. " These affairs, however important in their bearing upon the " general interests of Europe, do not immediately affect any direct " interests of Great Britain ; and whatever turn therefore these " affairs may take. Her Majesty's Government do not foresee that " it is likely that the course of these events woidd afford to the " British Government any just reason for departing from that " passive and observant attitude which the position of Great Britain " in regard to these affairs seems naturally to point out." No. in. Prince Castelcicala to Viscount Palmerston. " Londra, 2 Febhrajo, 1849. " Le tribolazioni che soifre il Sommo Pontefice, profugo daUa sua " capitale e rifugiato in Gaeta, contristano a ragione tutto I'orbe " Cattolico, e destano 1' ansieta e '1 desiderio universale di vedere " Sua Santit^ prestamente restituita aUa indipendenza ed aUa dig- " nitk primiere. " n Governo di Madrid ha creduto in tal circonstanza prendere " una iniziativa tuttaffatto Cattolica ; ha proposto la riunione di un " Congresso onde regolare diiSnitivamente i gravi casi di Eoma ; 664 APPENDIX IX. " ha invitato all' uopo i Govern! di Francia, Austria, Due Sicilie, " Portogallo, Baviera, Sardegna, e Toscana, presso i quali tutti il " culto dominante k il Cattolico ; ed ha indicate come poesibil sede " delle Conferenze, Madrid, o qualunque altra citt& Spagnuola sul " littorale del Mediterraneo. " Di sifBatte cose il Duca di Rivas, Ambasciadore di Spagna " presso la Corte delle Due Sicilie, diede con nota de' 2 dello " scorso Gennaio participazione al Govemo di Sua Maesti Si- " ciliana. " Sua Santita intanto, cui per le convenevoli vie diplomatiche si " era dal Gabinetto Spagnuolo fatta la simil participazione, osser- " vava esser meglio spediente che il Congresso si riunisca presso la " sua persona, come principalmente interessata nello affare ; osser- " vava che Madrid o qualunque altra cittJ, di Spagna sarebbero forse " eccentriche, e mal risponderebbero alia urgenza delle circostanze " ed alia indispensabil rapidita di eomunicazioni ; ed incaricava il " suo Nunzio a Madrid di manifestare a quel Govemo tali sue os- " servazioni. "II Ee delle Due Sicilie ha applaudito al nobil pensiero di un " Congresso, cui scopo sara di restituire al Capo della Chiesa Cat- " tolica lo indipendente esercizio deUe sue altissime e sacrosante " funzioni. Conformandosi pero, circa la sede delle Conferenze, " a' desideri espressi da Sua Santati ha offerto Napoli per punto di " riunione, Napoli che delle citta d' Italia e or la piu tranquilla, " ch' h vicinissima a Gaeta, e che or racchiude in se la maggior " parte de' Cardinal! del Sacro Collegio e de' piu distinti personaggi " della Corte Eomana. " Oltraccio, Sua Maestk Siciliana ha creduto necessario, e for- " malmente domanda la intervenzione nello emmziato Congresso '' deir Inghilterra, Russia, e Prussia ; la presenza di tali Grandi " Potenze essendo troppo reclamata in una discussione la quale " (oltre r importantissimo oggetto della religione) potr^ potente- " mente influire su le cose politiche e su la concordia deUe Due " Sicilie e della Italia intera. " II Sottoscritto, Inviato Straordinario e Ministro Plenipoten- " ziario della Maesta Sua presso Sua Maesta Britannica, nel far " quindi d' ordine del son Govemo a sua Eccellenza il Visconte " Palmerston, Principal Segretario di Stato al Dipartimento degli " AiFari Esteri, la sopraccennata narrazione, e nel pregare I'Eccel- " lenza sua di xma risposta all' uopo, non omette rimarcarle che la " premura spiegata del R6 delle Due Sicilie par la intervenzione " deir Inghilterra k una pruova della fiducia che Sua Maesti ri- "pone'ne' sentiment! amichevoli di un antico alleato, ed h un " giusto omaggio che rende alia saviezza del Gabinetto de St. " James. " II Sottoscritto, &c. (Firmato) " Castelcicala." APPENDIX IX. 665 No. IV. Viscount Palmerston to Prince Castelcicala. " Foreign Office, February 10, 1849. " The undersigned, &c., has the honour to acknowledge, the re- " ceipt of the note which Prince Castelcicala, &c., addressed to him " on the 2nd instant, giving an account of what has passed with " reference to a proposition made by the Court of Madrid, that the " principal Eoman Catholic Powers should take into their con- " sideration with a view to their settlement the affairs of His Holi- " ness the Pope, and calling the attention of the undersigned to " the fact that the Cabinet of Naples considers it necessary, and " formally demands that England, Prussia, and Russia should take " part in the proposed deliberations, the matter to be treated of, in- " dependently of its religious bearing, being one calculated to have " a great influence of a political character. " The undersigned has the honour to state to Prince Castelcicala, " in reply, that the Government of His Sicilian Majesty only does " justice to the Government of Her Majesty in supposing that Her " Majesty's Government would feel great pleasure in contributing, " as iar as they might probably be able to do so, to bring about " such an amicable arrangement of the differences existing between " the Pope and his subjects as might enable the Pope to return to " Rome, and might also restore permanent contentment and tran- " quillity to the Eoman States. " Her Majesty's Government, however, have not received any " specific application on this subject from the Pope ; and until " such application is made, they are unable to say what steps, if " any. Her Majesty's Government might think it expedient to take " in regard to these matters. " The undersigned, &c. (Signed) " Palmeeston." No.V. i Viscount Palmerston to the Marquis of Nomianhy. " Foreign Office, March 9, 1849. " (Extract.) " Although Great Britain has not so direct an interest as France " has in the ecclesiastical and political questions which arise out of " the present relations between the Pope and the people of the " Eoman States, the British Government nevertheless cannot view " those matters with indifference. Great Britain is indeed a Pro- " testant State, but Her Majesty has many millions of Catholic " subjects ; and the British Government must therefore be desirous, 666 APPENDIX IX. " with a view to British interests, that the Pope should be placed " in such a temporal position as to be able to act with entire inde- " pendence in the exercise of his spiritual functions. Great Britain " is so far distant from Italy that the political events of the Italian " Peninsula cannot have the same direct bearing upon British " interests which those events must exert upon the interests of " nearer States ; but still as those events must always have a " powerfiil influence upon matters involving questions of peace or " war in Europe, the British Government must necessarily watch " those events with much attention and anxiety. " The present condition of the relations between the Pope and " the people of his States has therefore been looked at with deep " solicitude by Her Majesty's Government. It would have been " the earnest wish of Her Majesty's Government, both on general " principles and with reference to the particular circumstances of " the case, that the differences between the Pope and his subjects " should have been adjusted by negotiation, either between the " Pope and his subjects directly, or by means of the interposition " of friendly Powers. A direct negotiation between the Pope and " his subjects seems now to have been rendered impossible by the " course of events at Rome, and by the tendency of those counsels " which there is reason to think are suggested to the Pope by the " persons who surround him at Gaeta. But Her Majesty's Govem- " ment do not see, even in the recent occurrences at Rome, any " reason for giving up the hope that the diplomatic interposition of " friendly Powers might stOl, without any actual employment of " military force, bring about such a settlement of differences as " would enable the Pope to return to Pome and to resume his " temporal authority ; and Her Majesty's Government, deprecating " as they do, on principle, the employment of a foreign military " force to settle internal dissensions in a State except in extreme " and peculiar cases, would greatly rejoice if the Powers to whom " the Pope has now appealed for assistance to extricate him from " his difficulties, were to try the effect of their moral influence at " Eome, before they resorted to any other more active measures. " It seems to Her Majesty's Government that a strong and unani- " mous manifestation of the opinion of those Powers in support " of order on the one hand, and of constitutional rights on the " other, would bring to reason the minority who now exercise " paramount authority at Eome ; and woidd give courage and con- " iSdence to the majority who have been hitherto intimidated and " overborne ; and if Great Britain had been invited to be a party " to these negotiations, and if an invitation to that effect had been " accepted, such would have been the course which Her Majesty's " Government would have recommended that the parties to the " transaction should pursue. " Her Majesty's Government have learnt with much pleasure that APPENDIX IX. 667 " France has been included in the invitation addressed by the " Pope to some of the Catholic Powers, requesting them to take " an active interest in the present condition of his affairs; and Her " Majesty's Government hope that if there is to be a concert " among any of the Powers of Europe in regard to those affairs, " the French Government will not decline the invitation to be a " party thereto. There are many very obvious reasons why in " several points of view it would be desirable that these matters " should not be disposed of without the participation of France. " Your Excellency says that the French Government would " have preferred that Sardinia should have been invited to take " part in these deliberations. Her Majesty's Government are en- " tirely of the same opinion. " The participation of Sardinia would mitigate the foreign cha- " racter of the negotiation, and if a contingency were to arise " which should lead to the employment of any military force within " the Eoman territory, Piedmontese troops would for many evident " reasons be better suited for such purpose than the troops of " Austria or of any State not belonging to the Italian Peninsula. " The opinion then of Her Majesty's Government upon the " points on which the Government of France has wished to have " it is, that it would be desirable that France should be a party to " the proposed deliberations, and that Sardinia should take part " in them also ; that it would be desirable that every endeavour " should be made to bring about a settlement between the Pope " and his subjects by negotiation and by moral influence before " resorting to the employment of force ; and that One condition of " the reinstatement of the Pope ought to be that he should engage " to maintain in their main and essential provisions the oonstitu- " tional and representative institutions which he granted to his " subjects last year." No. VI. The Marquis of Normanhy to Viscount Palmerston. — (Beceived March 9.) " Paris, March, 8 1849. " My Lord, " I HAVE the honour to transmit the copy of a note I have re- " ceived from the Apostolic Nuncio, inclosing one which has been " addressed by the Cardinal Antonelli to the Eepresentatives of all " friendly Powers, requesting them to co-operate for the purpose " of re-establishing the Papal authority at Eome. " I have, &c. (Signed) " Normanby." 668 APPENDIX IX. Inclosure 1 in No. VI. The Apostolic Nuncio to the Marquis of Normanhy. « Paris, ce 6 Mars 1849. " M. le Marquis, " Pak suite des graves ^v^nemens qui successivement se sont " accomplis S, Eome, le Tr^s Saint Pere s'est trouv^ dans la " n^cessit^ d'adresser h, toutes les Puissances amies du St. Siege " una invitation formelle de coopdrer au r^tablissement de I'autorit^ " du Gouvernement Pontifical comme seul moyen d'arreter I'anar- " cHe qui opprime les Etats de I'Eglise ; et je suis charge par " ordre exprfes de Sa Saintet^ de transmettre ci-joint k votre Ex- " cellence la copie de la note de son Eminence M. le Cardinal " Secretaire d'Etat, en vous priant, M. I'Ambassadeur, de la porter " k la connaissance du Gouvernement de Sa Majesty Britannique, " et d'y joindre vos bons offices pour raccomplissement des vues " du Trfes Saint Pere. " Sa Saintete aime k esperer qu'eUe trouvera dans les dispositions " des Puissances amies un secours effioace qui puisse satisfaire aux " voeux, aux prieres r^it^r^es de I'immense majority de ses fideles " sujets, demandant tous d'etre soulages des violence et des op- " pressions dont its sont I'objet de la part d'une faction audace et " impie. " Le Saint Pfere qui a ^t^ trfes touch^ de I'int&et et des sym- " pathies que Sa Majeste la Eeine d'Angleterre, votre Auguste " Souveraine, a bien voulu lui tdmoigner par la lettre qu'elle lui " a adress^e au mois de Janvier dernier, est confort^ de la pensee " que le Gouvernement de Sa Majesty, qiii s'int^resse vivement a " I'ordre et k la paix de I'Europe, voudra dans les circonstances " actuelles preter le meilleur concours pour iaire cesser un etat de " choses si nuisible a la paix generale et au bonheur des peuples, " et appuyer de sa puissante influence le concours reclame pour le " r^tabUssement du pouvoir legitime du Saint Pere dont indepen- " dance est plus que jamais n^cessaire pour I'exercice de son " autorite dans le Monde Catholique. " VeuUlez, M. le Marquis, je vous prie, transmettre le plus " promptement possible ma communication k votre Gouvernement, " et recevez, &c. (Sign^) " R. AECsiviQUE de Nic^e, " Nonce Apostoligue." Inclosure 2 in No. VI. Cardinal Antonelli to the Representatives of Foreign Powers. " Gaeta, 18 Febbrajo, 1849. " La Santiti di nostro Signore, fino dai primordii del suo Pon- tificato, non ebbe altro in mira cbe di prodigare beneficenze verso APPENDIX IX. 669 " i suoi sudditi a seconda dei tempi, prowedendo ad ogni lor mi- ■" glior bene. In fatti dopo aver pronunziato la parola del perdono " a colore che per delitti politici o erano esuli o giacevano nel " carcere, dopo aver eretta la Consulta di Stato ed istituito il Con- " siglio de' Ministri, accordata per la imperiosa violenza delle cir- " costanze la istituzione della Guardia Civica, la nuova legge per " una onesta liberty della stampa, ed inline uno statute fonda- " mentale per gli Stati di Santa Chiesa, aveva egli ben diritto a " quella riconoscenza che i sudditi devono ad un Principe, il quale " non li riguardava che come suei figli, e non prometteva loro se " non un regno di amore. Ma ben altro fu il ricambio che ritrasse " da tanti beneficii e condiscendenze loro prodigate. Dopo brevi " dimostrazioni di plauso, guidate pero da chi gik aveva nel seno le " piu ree intenzioni (dimostrazioni che il Santo Padre con i modi " tutti proprii del paterno suo cuore procur6 di far cessare) ben " tosto sperimento 1' amaro frutto della ingratitudine. Violentato " egli della sfrenatezza di ima fazione ad impugnarsi in una guerra " contro r Austria, si trovo costretto di pronunciare una allocuzione " nel Concistoro dei 19 Aprile dello scorso anno, con la quale di- " chiar6 al mondo intero che il suo doveie e la sua coscienza nol con- " sentivano. Tanto bast6 perchfe prorompessero le gik predisposte " machinazioni in aperte violenze all' esercizio del suo pieno e libero " potere, costringendolo alia divisione del Ministero di Stato in " ecclesiastico e civile, divisione che non mai riconobbe. " Si confidava pero il Santo Padre che ponendo ai diversi Mini- " sterii persone idonee ed amanti dell' ordine, fossero le cose per " prendere migliore andamento, e si arrestassero in parte quel mali " che gia minacciavano sciagure. Ma xxa ferro micidiale, brandito " da mano assassina, tronc6 le concepite speranze con la morte del " Ministro Eossi. Da questo delitto menato in trionfo, si inauguro " impudentemente il regno della violenza ; si circondo di armati il " Quirinale, lo si tento d' incendio, si esplosero colpi contro gli " appartamenti ove dimorava il Sommo Pontifice, e si ebbe il dolore " di vedere che uno dei segretarii ne rimanesse vittima ; volevasi " infine col cannone aprire a viva forza il suo palazzo, laddove non " cedesse ad ammettere il Ministero che gli veniva impoato. " Con una serie di fatti si atroci, come a tutti e ben noto, avendo " dovuto soccombere all' impero della forza, si vide il Pontefice " nella dura necessity di allontanarsi da Roma e da tutto lo Stato " Pontificio, a fine di ricuperare quella liberta che gli era stata tolta, " e di cui deve godere nel pieno uso della suprema sua potest^. Per " disposizione della Divina Provvidenza riparatosi a Gaeta, ed ospita- " to da un Principio eminentamente Cattolico, circondata da un gran " del Sagro CoUegio e dai Eappresentanti di tutte le Potenze con " le quali h in amichevoli rapporti, non tard6 un momento a fare " sentire la sua voce ad annunziare coll' atto Pontificio del 27 No- " vembre prossimo passato i motivi della temporanea separazione 670 APPENDIX IX. " dai suoi sudditi, la nullitk e la illegality di tutti gli atti emanati " dal Ministero estorto dalla violenza, ed a nominare una com- " missione governativa purchfe assumesse la direzione dei pubblioi " affari durante I'assenza dai suoi Stati. •' Per nulla apprezzandosi la emanazione de' suoi voleri, e pro- " curandosi con mendicati pretesti di eludere la lore forza presso la '.' classe inesperta, si pass6 dagli autori delle sagrileghe violenza ad " attentati niaggiori, arrogandosi quel diritti che al Sovrano solo si " appartengono, con 1' istituzione di una iUegittima rappresentanza " governativa col titolo di provvisoria e suprema Griunta di Stato. " Contro il quale gravissimo e sagrilego misfatto il Santo Padre " solennemente protesto, con I'altro suo atto del 17 Dicembre pros- " simo passato, annunziando non essere quella Giunto di Stato se " non una usurpazione dei sovrani poteri, nk avere percio alcuna " autorita. " Si aspettava egli che tali protesto richiamassero ai doveri di " fedelta e di sudditanza i traviati, ma invece un nuovo e piii mo- " struoso atto di palese fellonia, di vera ribeUione colm6 la sua " amarezza. Tale fu la convocazione di un' assemblea generale " nazionale dello Stato Romano, per stabilire nuove forme politiche " da darsi agli Stati della Santa Sede. Laonde con altro Moto " Proprio del 1° dell' ora decorso Gennajo protesto contro quell' " atto, e lo condann6 qual enorme e sagrilego attentato commesso " in prejudizio della sua independenza e sovranita meritevole dei " gastighi comminati deUe leggi si divine come umane, e vieto ad " ognuno de' suoi sudditi il prendervi parte, avvertendoli che chi- " unque osa attentare contro la temporale sovranita dei Sommi " Pontefici Eomani, incorre nelle censure e specialmente nella " scommunica maggiore, pena nella quale dichiaro essere incorsi " coloro eziandio che in qualunque modo e sotto mentito pretesto " hanno violata ed usurpata la sua autorita. " Come si acoogliesse dal partito simile protesta e si autorevole " condanna, bastera I'accennare che si tento ogni sforzo per impe- " dime la divulgazione, si sottopose a gastighi chi osasse istruime " il popolo, chi non secondasse le loro mire, tuttavia ad onta di si " maudita violenza la maggiorita dei sudditi rimase fedele al proprio " Sovrano, e si espose a sagrificii ed a pericoli ancora della vita, " piuttosto che mancare al dovere di suddito e di Gattolico. In- " asperito maggiormente il partito medesimo nel vedere contrariati i " loro disegni, raddoppiarono in miUe modo la violenza ed il terrore, " senza riguardo alcuno a condizione o grade, ma volendosi con- " sumare ad ogni costo questo eccesso di fellonia si ricorse pure alle " arti le piu vili e mercenarie. Cosi passando di eccesso in eccesso, " con abusare delle stesse beneficenze concesse dal Pontefice, e spe- " cialmente convertendo nella piii ributtante licenza la liberta della " stampa, dopo le piu inique malversazioni per premiare i loro com- " plici e non piii tollerare la presenza degli onesti e tjmorati, dopo APPENDIX IX. 671 " tanti assassinii commessi sotto la loro egide, dopo aver dissemi- " nato ovunque la ribellione, il mal costume, la irreUgione, dopo " aver sedotta tanta gioventu incauta, non piii rispettando i luoghi " aagri e gli asili di pace e di solitudine, ne' i luoghi stessi di pub- " blico insegnamento per convertirli in covili della piu indiscipli- " nata milizia raccolta da profugH e scelerati di estere contrade, si " vuol ridurre la capitale del mondo Cattolico, la sede dei Ponte- " fici, in una sede di empieta, atterrando, se fosse possibile, ogni " idea di sovranitJi in chi dalla provvidenza h destinato a reggere la " Chiesa universale, e che appunfx) per esercitare liberamente " questa sua autoriti su tutto I'orbe Cattolico, gode di uno stato " come patrimonio della Chiesa ; alia quale vista di desolazione e di " strage non puo il Santo Padre non rimanere profondamente ad- " dolorato, commosso altresi dal grido de' suoi buoni sudditi, che " reclamano il suo ajuto, il suo soccorso per essere liberati dalla piii " atroce tirannia. " La Santiti Sua, com' e palese, poco dopo giunta in Gaeta, " sotto il giorno 4 Dicembre prossimo passato, diresse la sua voce " a tutti li Sovrani coi quali h in relazione, e dando lor parte del " suo allontanamento dalla capitale e dallo Stato Pontificio, e delle " cause che lo provocarono, invocava il loro patrocinio per la di- " fesa dei dominii della Santa Sede. Ed fe pure di dolce soddis- " fazione il manifestare di avere presso che tutti amorevolmente " corrisposto, prendendo la piii viva parte alle sue amarezze, alia " penosa sua situazione, ofirendosi pronti in suo favore, ed ester- " nando al tempo stesso sensi ossequiosissimi di devozione e di " attaccamento. "Nella espettativa di si feKci e generose disposizioni, mentre " Sua Maest^ la Eegina di Spagna aveva con tanta sollecitudine " promosso un Congresso delle Potenze Cattoliche per determinare " i mezzi onde prontamente ristabilire il Santo Padre ne' suoi Stati, " e nella sua plena libertJl ed indipendenza, proposizione alia quale " avevano prestato adesione varie Potenze Cattoliche, e stavasi in " attenzione di quella delle altre, e pur d' uopo con dolore riferire, " che le cose dello Stato Ponteficio sono in preda di un incendio " devastatore per opera del partito sovvertitore di ogni sociale " istituzione, che sotto speziosi pretesti di nazionalit^ ed indipen- " denza nulla ha trascurato di porre in opera per giungere al colmo " della loro nequizia. II decreto, detta fondamentale, emanato nel " di 9 corrente, dall' Assemblea Costituente Eoniana offre un' atto " che da ogni dove ribocca della piu nera fellonia e della piu " abominevole empieta. Con esso dichiarasi principalmente de- " caduto il Papato di fatto e di diritto dal governo temporale dello " Stato Eomano, si proclama una repubblica, e con altro atto si " decreta 1' abbassamento degli stemmi del Santo Padre. Sua San- " titk nel vedere oosi vilipesa la suprema sua dignity di Pontefice e " Sovrano, protesta in faccia ai Potentati tutti, ed a tutti i singoli 672 APPENDIX IX. Foreign interven- tion re- quested. " Cattolici del mondo universe, contro questo eccesso d' irreligione, " contro si violente attentato di spoglio degli imprescrittibili e sagro- " santi suoi diritti. Quindi laddove non si accorresse eon un " pronte riparo, giungerebbe il soccorso allorquando gli Stati della " Chiesa, era interamente in preda de' suoi acerrimi nemici, fossero " ridotti in cenere. " Pertanto avendo il Santo Padre esauriti tutti i mezzi che erano " in suo potere, spinto dal dovere che ha al cospetto di tutto il " mondo Cattolico di conservare integro il patrimonio della Chiesa " e la sovranit^ che vi h annessa, cosi indispensabUe a mantenere " la sua plena liberty ed independenza come capo supremo della " Chiesa stessa, e mosso altresi dal gemito dei buoni che reclamano " altamente un ajuto, non potendo piu oltre sopportare un giogo " di ferro ed una mano tiranuica, si rivolge di nuovo a quelli stesse " Potenze, e specialmente a quelle Cattoliche che con tanta gene- " rosita di animo, ed in modo non dubbio hanno manifestata la " loro decisa volonta di esser pronte a difendere la sua causa, neUa " certezza che vorranno con ogni sollecitudine concorrere con il " loro morale intervento, affinch^ venga egli restituito aOa sua sede, " alia capitale di quel dominii che furono appunto costituiti a " mantenere la sua plena liberty ed indipendenza e garantiti " eziandio dai trattati che formano la base del diritto pubblico " Europeo. " E poiche I'Austria, la Francia, la Spagna, ed il Eegno deUe " Due Sicilie si trovano per la lora posizione geografica in situa- " zione di potere sollecitamente accorrere con le loro armi a " ristabiKre nei dominii della Santa Sede 1' ordine manomesso " da un' orda di settarii, cost il Santo Padre, fidando nel religioso " interesse di queste Potenze figlie della Chiesa, domanda con " piena fiducia il loro intervento armato per liberare principal- " mente lo Stato della Santa Sede da quella tazzione di tristi " che con ogni sorta di sceleraggine vi esercita il piu atroce despo- " tismo. " Per tal modo solo potra essere ripristinato 1' ordine negli Stati " della Chiesa, e restituito il Sommo Pontefice al libero esercizio " della suprema sua autorit^, siccome lo esiggono imperiosamente " il sagro ed augusto suo carrattere, gl' interessi della Chiesa uni- " versale, e la pace dei popoli ; e cosi potra egli conservare quel " patrimonio che ha ricevuto nell' assunzione del Pontificato per " trasmetterlo integro ai suoi successori. La causa k deU' ordine e " del Cattolicismo. Per la qual cosa il Santo Padre si confida che " mentre tutti le Potenze con cui si trova in amichevoli relazione, " e che in tanti modi nella situazione in che b stato gettato da un " partido di faziosi, gli hanno manifestato il loro piu vivo interesse " daranno un' assistenza morale all' intervento armato, che per la " gravity delle circonstanze ha dovuto invocare, le quattro Potenze " di sopra accennate non indugieranno un momento di prestare APPENDIX IX. 673 " r opera loro richiesta, rendendosi cosi benemerite dell' ordine pub- " blico e della roligione. " II Sottoscritto, Cardinale Pro-Segretario di Stato di Sua San- " tita, interessa per tanto vostra Eccelleiiza affiachfe si compiaccia " portare questa nota il piu sollecitamente possibile a cognizione " del suo Governo ; e nella liducia di benevola accoglienza, ha " r onore, &c." No. VII. Viscount Palmerston to the Marquis ofNormanhy. " Foreign Office, March 27, 1849. " My Lord, " I HAVE received your Excellency's despatch of the 8th instant, " transmitting to me the copy of a note which your Excellency had " received from the Apostolic Nuncio, inclosing the copy of the " note which has been addressed by Cardinal Antonelli to the Ee- " presentatives of all friendly Powers, requesting them to co- " operate for the purpose of re-establishing the Papal authority at " Eome. " I have to instruct your Excellency to say to the Nuncio that " Her Majesty's Government have received and have attentively " considered the communication which he has made to them " through your Excellency, and that you are instructed to express " to him the deep regret with which Her Majesty's Government " have witnessed the differences which have arisen between the " Pope and his subjects, the assassination of Count Eossi, the de- " parture of the Pope from his capital and States, and the procla- " mation of a Eepublic at Eome. " The British Government is, for many obvious reasons, not " desirous of taking an active part in any negotiations which may " result from the application which the Pope has addressed to " some of the Catholic Powers of Europe, whose territories are " nearer than Great Britain in geographical proximity to the " Italian Peninsula. But the British Government will be much " gratified if the result of those negotiations should be such a " reconciliation between the Pope and his subjects as might enable " the former with the free good-will and consent of the latter to return " to his capital, and there to resume his spiritual functions and his " temporal authority. But it is the opinion of Her Majesty's " Government that such a reconciliation could scarcely be effected, " or if effected for the moment, could never be permanent, unless tlie " basis upon which it was founded were to be that the Pope should " engage to maintain the constitutional and representative system " of government which he granted last year to his subjects, and " unless the separation between the spiritual authority and the " temporal powers and institutions of tlie State were so clearly and VOL. II. X X 674 APPENDIX IX. '' SO distinctly established as to put an end to those manifold griev- " ances which the mixture of the spiritual with the temporal power " has for so long a period of time produced in the Roman States. " The great importance of admitting laymen to administrative and " judicial functions in the Roman States was pointed out to the " late Pope by the Memorandum presented in 1832 to the Roman " Government by the Representatives of Austria, France, Great " Britain, Prussia and Russia, and the events which have happened " since that time, not onlyin the Roman States but in the rest of " Europe, have tended to make it still more important that such a " reform should be carried out into full and complete execution. " Your Excellency will give the Nuncio a copy of this dispatch. " I am, &c. " (Signed) Palmeeston." No. 4. On the 12th of July, 1859, AntoneUi addressed to the repre- sentatives of the Papal Government at foreign Courts a circular, in which he dwelt upon the evils brought upon the Papacy by the revolution in Italy and the assistance given to it by the "King " of Piedmont," and then invoked the forcible intervention of foreign States to keep the Pope on his throne, as follows : — " AH the measures taken with the view of preventing or extenu- " ating this series of evils having been in vain, the Holy Father, not " forgetful of the duties incumbent upon him for the protection of " the States and for the preservation in its integrity of the temporal " domain of the Holy See, which is essentially connected with the " free and independent exercise of the Supreme Pontificate, protests " against the violations and usurpations committed, in spite of the " acceptance of neutrality, and desires that his protest may be com- " municated to all the European Powers. Confident in the justice " which distinguishes these Powers, he feels assured that they will " support him, that they will not permit the success of a manifest vio- " lation of the law of nations and the rights of the Holy Father. " He trusts that they will not hesitate to co-operate in the vindica- " tion of those rights, and to that end he invokes their assistance " and protection " {b). On the 3rd of September, 1859, the Assembly of Romagna adopted the following resolution, by which they formally cast off their allegiance to the Pope : — " Considering that the people of Romagna, after having in former " centuries lived under their own statutes and laws, and in the " beginning of the present century formed part of a civil kingdom, " were in 1815 placed under the temporal government of the Pope " against their will ; considering that that Government, while it did " not revive the old privileges, destroyed the good institutions of (i) Ann. Reg. 1859 : History, pp. 257, 8. APPENDIX IX. 675 " the Italian kingdom, and .afflicted its subjects by its bad adminis- " tration, well known to Europe ; considericg that from that moment " the history of these provinces became a painiiil succession of " revolutions and reactions, so that at length exceptional measures and the state of siege became the ordinary rule of government ; " considering that this produced serious evils, not only by destroy- " iiig public prosperity, but also by overthrowing the moral sense of " the people, with incessant danger to the tranquillity of Italy and " Europe; considering that every attempt at reform was vain, that " the prayers of the people remained unheard, as well as the advice " of the Potentates of Europe, and that the promises made were " never kept; considering that the said Government has been found " to be incompatible with Italian nationality, with civil equality and " political liberty ; considering that it was not even able to defend " the lives and property of its subjects; considering that it abdi- " cated its sovereignty de facto, giving up its noblest prerogatives " mto the hands of Austrian Generals, who for many years held the civil and military government of these provinces in their hands, " and conducted it ill ; considering that it cannot support itself by " its own strength, but only by foreign or mercenary armies, and " has therefore become incompatible with public tranquillity and " permanent order ; lastly, considering liat the temporal govern- " ment of the Pope is substantially and historically distinct from " the spiritual government of the Church, which these populations " will always respect, we, representatives of the people of Eomagna, " convoked in general assembly, and calling God to witness as to " the rectitude of our intentions, declare that the people of Eomagna " refiise to live any longer under the temporal sway of the Pontiif'Xc). No. 5. ENCYCLIC AND SYLLABUS, DECEMBER, 1864 (rf). " Die VIII. Decembris, MDCCCLXI.V. " SS. DOMINI NOSTEI PII IX. " EPISTOLA ENCYCLICA. " VeNEEABILIBUS FeATRIBUsPaTEIARCHIS, PbIMATIBUS, ARCHIEPISCOPrS " ET EpISCOPIS UnIVEESIS GeaTIAM ET COMMUNIONEM ApO- " STOLiciE Sedis habentibus. " PIUS PAPA IX. " Venerabiles Fratres, " SaLUTEM ET ApOSTOLICAM BENEDICTIONESf. " Quanta cura ac pastorali vigilantia Romani Pontifices Prsedeces- " sores Nostri, exsequentes demandatum sibi ab ipso Christo Domino (c) Ann. R«g. 1859; History, pp. 258, 259. (<^) See pp. 374, 399, 416. X X 2 676 APPENDIX IX. " in persona Beatissimi Petri Apostolorum Principis officium, munua- " que pascendi agnoa et ovea nunqnam intermiaerint universum " Domniouni gregem sedulo enutrire verbis fidei, ac aalutari doctrina " imbuere, eumque ab venenatia pascuis arcere, omnibua quidem ao " Vobia prassertim compertum, exploratumque est,Venerabilea Fratrea. " Et sane iidem Decessorea Noatri, auguatse catholicse religionia, " veritatia ac juatitiaj aaaertores et vindices, de animarum salute " maxime solliciti nihil polius unquam habuere, quam sapientiasimis " suis Litteris, et Constitutionibua retegere damnare omnes hsereaea " et errores, qui Divines Fidei noatree, catholicse Ecclesias doctrine, " morum honestati, ac sempiternEe honiinum saluti adverai, graves " frequenter excitarimt tempeatates, et Christianam civilemque rem- " publioam miaerandum in. modum funestarunt. Quocirca iidem " Deceasorea Noatri Apostolica fortitudine continenter obatitemnt " nefariia iniquorum hominum molitionibus, qui despumantes tam- " qnam fluctus feri maris confuaiones auas, ac libertatem promit- " tentes, cum servi sint corruptionis, fallacibua suis opinionibus, et " perniciosissimis scriptis catliolicse religionia civilisque sooietatia " fundamenta convellere, omnemque virtutem ac justitiam de medio " tollere, omniumque animos mentesque depravare, et incautoa im- " pp.ritamque prassertim juventutem a recta morum disciplina aver- " tere, eamque miserabiliter corrumpere, in erroris laqueoa inducere, " ac tandem ab Ecclesiffi catholicse sinu avellere oonati simt. " Jam vero, uti Vobia, Venerabilea Fratrea, apprime notum eat, " Noa vix dum arcane Divinse Providentias consilio nullis certe " Nostris meritis ad banc Petri Cathedram evecti fuimus, cum vide- " remua summo animi Noatri dolore horribilem sane procellam tot " pravis opinionibus excitatam, et gravissima, ac nunquam aatis " lugenda damna, qiias in christianum populum ex tot erroribus " redundant, pro Apostolici Nostri Ministerii officio illustxia Pra3de- " cessorum Nostrorum vestigia sectantes Nostram extulimus vocem, " ac pluribus in vulgus editia Encjolicis Epistolis et Allocutionibus " in Consistorio habitis, aliisque Apostolicis Litteris prsecipuos " tristissimas nostrse setatis errores damnavimus, exiraiamque veatram " episcopalem vigilantiam excitavimua, et universes catbolicse " Bccleaise Nobis carissimoa filios etiam atque etiam monuimua et " exhortati sumus, ut tarn dir® contagia pestis omnino horrerent et " devitarent. Ac prassertim Nostra jirima Encyolica Epistola die " 9 Novembris anno 1846 Vobis acripta, binisque Allocutionibus, ■" quarum altera die 9 Decembria anno 1854, altera vero 9 Junii " anno 1862 in Consistorio a Nobis babita fuit, monatrosa opinionum " portenta damnavimus, quae hac potiaaimum eetate cum maximo " animarum damno, et civilis ipsius aocietatis detrimento dominantur, " qnteque noji solum catholicse Ecolesise, ej usque salutari doctrine ac " venerandis juribus, verum etiam sempiternse naturali legi a Deo in " omnium cordibus insculptte, rectseque rationi maxime adversantur, " et ex quibus alii prope omiiea originem habent errores. APPENDIX IX. 677 " Etsi autem haud omiserimus potissimos hujusmndi errores " Sffipe proscribere et reprobare, tamen catholicas Ecclesise causa, " animarumque salus Nobis diviuitus commissa, atque ipsius humanas " societatis bonum oranino postulant, ut iterum pastoralem vestrain " sollicitudinem excitemus ad alias pravas profligandas opiniones, quaj " ex eisdem erroribus, veluti ex fontibus erumpunt. Qnse falsee ao " perversse opiniones eo niagis detestaudas sunt, quod eo potissimum " spectant, ut impediatur et amoveatur salutaris ilia vis, quam " catholica Ecclesia ex divini sui Auctoris institutione et niandato, " libere exercere debet usque ad consummationem sasculi non " minus erga singulos homines, quam erga nationes, populos sum- " mosque eorum Principes, utque de medio toUatur mutua ilia inter " Sacerdotium et Imperium consiliorum societas et concordia, quse " rei cum sacrse tum civili fausta semper extitit ac salutaris. [Gregor. " XVI. Epist. Encycl. ' Mirari.' 15 Aug. 1832.] Etinim probe " noscitis, Venerabiles Fratres, hoc tempore non pauoos reperiri, " qui civili consortio impium absurdumque naturalismi, uti vocant, " principium applicantes audent docere, ' optimam societatis pub- " lic£e rationem, civilemque progressum omnino requirere, ut humana " societas constituatur et gubernetur, nuUo habito ad religionem " respectu, ac si ea non existeret, vel saltern nuUo facto veram inter " falsasque religiones discrimine.' Atque contra sacrarum Litte- " raruni, Ecclesife, sanctorumque Patrum dootrinam, asserere non " dubitant,-. ' optimam esse conditionem societatis, in qua Imperio " non agnoscitur ofEcium coercendi sanoitis pcenis violatores catho- " licse religionis, nisi quatenus pax publica postulet ' Ex qua " omnino falsa socialis regiminis idea haud timent erroneam illam " tbvere opinionem catholica; Ecclesise, animarumque saluti maxime " exitialem a rec. mem. Gregorio XVI. Prsedecesaore Nostro delira- " menium appellatam [Badem Encycl. ' Mirari^'], nimirum ' liber- " tatem conscientia3 et cultuum esse proprium cujuscumque hominis " jus, quod lege proclamari et asseri debet in omni recte coustituta " sooietate, et jus civibus inesse ad omnimodara libertatem nulla " vel ecolesiastica, vel civili auctoritate coarctandam, quo sues " conceptus quoscumque sive voce, sive typis, sive alia ratione " palam publiceque manifestare ao declarare valeant.' Dum vero " id temere affirmant, haud cogitant et considerant, quod libertatem " perditionis [S.Aug. Epist. 105, al. 166] prajdicant, et quod ' si " humanis persuasionibus semper disceptare sit liberum, nunquam " deesse poterunt, qui veritati audeant resultare, et de humane " sapientise loquacitate confidere, cum hanc nocentissimam vanitatem " quantum debeat fides et sapientia ohristiana vitare, ex ipsa Domini " nostri Jesu Christi institutione cognoscat. [S. Leonis Epist. 164, " al. 133, § edit. BaU.] . _ " Et quoniam ubi a civili societate fuit amota religio, ac repudiata " divinse revelationis doctrina et auctoritas, vel ipsa germana justitise " humanique juris notio teuebris obscuratur et amittitur, atque in 678 APPENDIX IX. " verse justitiaj legitimique juris locum materialia substituitur vi8, " inde liquet cur nonnulli certissimis sana; rationis principiis penitug " neglectis postliabitisque audeant conclamare, ' voluntatem populi, " publica, quam dicunt, opinione vel alia ratione manifestatam " constituere supremam legem ab omni divino humanoque jure " solutam, et in ordiiie politico facta consummata, eo ipso quod " consummata sunt vim juris habere.' Verum ecquis non videt, " planeque sentit, hominum societatem religionis ac verse justitiae " vinculis solutam nullum aliud profecto propositum habere posse, " nisi scopum comparandi, cumulandique opes, nullamque aliam in " suis actionibus legem sequi, nisi indomitam animi cupiditatem " inserviendi propriis voluptatibus et commodis ? Eapropter hujus- " modi homines acerbo sane odio insectantur Eeligiosas Familias - " quamvis de re Christiana, civili, ao littfiraria summopere meritas, " et blaterant easdem nullam habere legitimam existendi rationem, " atque ita hsereticorum commentis plaudtmt. Nam ut sapientissime " reo. mem. Pius VI. Decessor Noster docebat, ' regularium abolitio " Isedit statum publico professionis consiliortim evangelicorum, " Isedit vivendi rationem in Ecclesia commendatam tamquam " Apostolicse doctrine consentaneam, Isedit ipsos insignes fundatores; " quos super altaribus veneramiu-, qui non nisi a Deo inspirati eas " constituerunt societates.' [Epist. ad Card, de la Rochefoucanlt, " 10 Martii 1791.} Atque etiam impie pronimciant, auferendam " esse civibus et Ecclesise facultatem ' qua eleemosynas ChristianDS " caritatis causa palam erogare valeant,' ac de medio tollendam " legem ' qua certis aliquibus diebns opera servilia propter Dei " cultum prohibentur,' fallacissime prsetexentes, commemoratam " facultatem et legem optima^ publicse oeconomise principiis obsistere. '■ Neque content! amovere religionem a publica sooietate, volunt ■• religionem ipsam a privatis etiam arcere famibis. Etenim " fanestissimum Coimnunismi et Socialismi docentes ac profitentes " errorem asserunt ' societatem domesticam seu familiam totam suse " existentis! rationem a jure dumtaxat civili mutuari ; proindeque " ex lege tantum civUi dimanare ac peudere jura omnia parentum " in filios, cum primis vero jus institutionis educationisque cu- " randje.' Quibus impiis opinionibus, machinationibusque in id " prsecipue intendimt fallacissimi isti homines, ut salutifera catho- " licae Ecclesiae doctrina ac vis a juventutis institutions et educa- " tione prorsus eliminetur, ac teneri flexibilesque juvenum animi " perniciosis quibusque erroribus, vitiisque misere inficiantur ac " depraventur. Siquidem omnes, qui rem turn sacram, turn " publicam perturbare, ac rectum societatis ordinera evertere, et " jura omnia divina et humana delere svint conati, omnia neiaria sua " consilia, studia et operam in improvidam prasertim juventutem " decipiendam ac depravandam, ut supra iuuuimus, semper contu- " lerunt, omnemque spem in ipsius juventutis corruptela collocarunt. " Qiiocirca nunquara cesi-aut utrumque clerum, ex quo, veluti APPENDIX IX. 679 " certissima Mstoria; momimenta splendide teatantur, tot magna in " Christianam, civilem, et litterariam rempublicam commoda redun- " darunt, qiubuscumque infandis modis divexare, et edicere, " ipsum Clerum ' utpote vero, ntilique scientiaa et civilitatis pro- " gressui inimicum, ab omni juventutis instituendas educandaeque " cura et ofScio esse amovendum.' " At vero alii instaurantes prava ac toties damnata novatorum " commenta, insigni impudentia audent, Eoclesise et hujus Aposto- " licaj Sedis siipremam auctoritatem a Christo Domino ei tributam " civilis auctoritatis arbitrio subjioere, et omnia ejusdem Bcclesise et " Sedis jura denegare circa eaques ad exteriorem ordinem pertinent. " Namque ipsos minime pudet affirmare ' Ecclesise leges non " obligare in conacientia, nisi cum promulgantur a civili potestate ; " acta et decreta Romanorum Pontifioum ad religionem etEcolesiam- " spectantia indigere sanctione et approbatione, vel minimum " assensu potestatis civilis ; constitutiones Apostolicas [Clement XII. " ' In eminenti. ' Benedict XIV. ' Providas Romanorum. ' Pii VII. " ' Ecclesiam. ' Leonis XII. ' Quo graviora '], quibus damnantur " clandestinse societates, sive in eis exigatur, sive non exigatur " juramentum de secreto servando, earumque asseclaj et fautores " anathemate mulctantur, nullam habere vim in illis orbis regio- " nibus ubi ejusmodi aggregationes tolerantur a civili gubernio ; " excommunicationem a Concilio Tridentino et Eomanis Pontifi- " cibus latam in eos, qui jura possessionesque Ecclesise invadunt et " usurpant, niti confusione ordinis spiritualis ordinisque civilis ac " politici, ad mundanum dumfaxat bonum prosequendum ; Ecclesiam " nihil debere decernere, quod obstringere possit fidelium conscien- " tias in ordine ad usum rerum temporalium ; Ecclesise jus non " competere violatores legum suarum pcenis temporalibus coercendi ; " conforme esse sacrse theologias, jurisque publioi principiis, bo- " norum proprietatem, quee ab Ecclesia, a Familiis religiosis, aliisque " locis piis possidentur, civili gubernio asserere et vindicate. ' " Ij^eque erubescunt palam publiceque profiteri hsereticorum efFatum " et principium, ex quo tot perversse oriuntur sententise, atque " errores. Dictitant enim ' Ecclesiasticam potestatem non esse jure " divino distinctam et independentem a potestate civili, neque " ejusmodi distinctionem et independentiam servari posse, quin ab " Ecclesia invadantur et usurpentur essentialia jura potestatis " civilis.' Atque silentio prmterire non possumus eorum audaciam, " qui sanam non sustinentes doctrinam contendunt ' illis Apostolicje " Sedis judiciis, et decretis quorum objectum ad bonum generale " Ecclesias, ejusdemque jura, ac disciplinam spectare declaratur, " dummodo fidei morumque dogmata non attingat, posse assensum " et obedientiam detrectari absque peccato, et absque ulla catholicre " professionis jactura : ' quod quidem quantopere adversetur catho- " lico dogmati plenas potestatis Eomano Pontifici ab ipso Christo " Domino divinitus coUataB universalem pascendi, regendi, et guber- 680 APPENDIX IX. " nandi Ecclesiam, nemo est qui non clare aperteque videat et " intelligat. " In tanta igitur depravatarum opinionum perversitate, Nos " Apostolici Nostri officii probe memores, ac de sanctissima nostra " Eeligione, de sana dootrina, et animarum salute Nobis divinitus " commissa, ac de ipsius hunianee societatis bono maxime solliciti, " Apostolicam Nostram vocem iterum extollere existimavimus. " Itaque omnes et singulas pravas opiniones ac doctrinas singillatim " hisce Litteris commemoratas Auotoritate Nostra Apostolica re- " probamus, proscribimus atque damnamus, easque ab omnibus " catliolicse Ecclesise filiis, veluti reprobatas, proscriptas atque " damnatas onmino haberi volumus et mandamus. " Ac prseter ea, optime soitis, Venerabiles Fratres, hisce tempo- " ribus omnis veritatis justitiseque osores, et acerrimos nostrse reli- " gionis hostes, per pestiferos libros, libellos, et epliemerides toto " terrarum orbe dispersas populis illudentes, ac malitiose mentientes " alias impias quasque disseminare doctrinas. Neque ignoratis, hac " etiam nostra astate, nonnullos reperiri, qui Satanse spiritu permoti " et incitati eo impietatis devenertmt, ut Dominatorem Dominum " Nostrum Jesum Christum negare, ej usque Divinitatem scelerata " procacitate oppugnare non paveant. Hie vero haud possumns, " quin maximis ineritisque laudibus Vos efferamus, Venerabiles " Fratres, qui episcopalem vestram vocem contra tantam impietatem " onmi zelo attoUere minima omisistis. " Itaque hisce Nostris Litteris Vos iterum amantissime alloqui- " mur, qui in sollicitudinis Nostra partem vocati summo nobis inter " maximas Nostras acerbitates solatio, Isetitise, et cousolationi estia " propter egregiam, qua prtestatis religionem, pietatem, ao propter " mirum ilium amorem, fidem, et observantiam, qua Nobis et huic " Apostolicas Sedi concordissimis animis obstricti gravissimum epi- " scopale vestrum ministerium strenue ac sedulo implere contenditis. " Etenim ab eximio vestro pastorali zelo expectamus, ut assumentes " gladium spiritus, quod est verbum Dei, et confortati in gratia " Domini Nostri Jesu Christi, velitis ingeminatis studiis quotidie " magis prospicere, ut fideles curas vestx® concrediti ' abstineant ab " herbis noxiis, quas Jesus Christus non colit, quia non sunt plan- " tatio Patris.' [S. Ignatius M. ad Philadelph. 3.] Atque eisdem " fidelibus inculcare nunquam desinite, omnem veram felicitatem in " homines ex augusta nostra religione, ejusque doctrina et exercitio " redundare, ac beatum es.'se populura, cujus Dominus Deus ejus. " [Psal. 143.] Docete ' catholicie Fidei fundamento regna subsis- " tere [C^lest. Epist. 22, ad Synod. Ephes. apud Coust., p. 1200], " et nihil tam mortiferum, tarn prsoeps ad casum, tam expositum ad " omnia pericula, si hoc solum nobis putantes posse suiEcere, quod " liberum arbitrium, cum nasceremur, accepimus, ultra jam a " Domino nihil quseramus, id est, auctoris nostfi obliti, ejus poten- " tiam, ut nos ostendamus liberos, abjuremus.' [S. Innocent. I. APPENDIX IX. 681 " Epist. 29 ad Episc. Cone. Carlhag. apud Coust., p. 891. J Atque " etiam ne omittatis docere ' regiam potestateni non ad solum mundi " regimen, sed maxime ad Eoclesise prassidium esse coUatam ' [S. *' Leonis Epist. 156, al. 125], et nihil esse quod oivitatum Principi- " bus, et Regibus majori friictui, gloriasque esse possit, quam si, ut " sapientiasimus fortissim usque alter PrEedecessor Noster S. Felix " Zenoni Imperatori prsescribebat, ' Ecclesiam catholicam . " sinant uti legibus suis, nee libertati ejus qiiem.quam permittant *' obsistere. . . . Certum est enim, hoc rebus suis esse salutare, •' lit, cum de causis Dei aaatur, justa ipsius constitutam regiam vo- *' luntatem Saeerdotibus Christi studeant subdere, non prseferre.' " [Pii VII. Epist. Bncycl. ' Diu satis,' 15 Mali 1800.] " Sed si semper, Venerabiles Fratres, nunc potissimum in tantis " Ecelesias, civilisque societatia calamitatibus, in tanta adversariorum *' contra rem catholicam, et banc Apostolicam Sedem conspiratione " tantaque errorum congerie, necesse omnino est, ut adeamus cum " fiducia ad thronum gratise, ut misericordiam consequamur, et " gratiam inveniamus in auxilio opportune. Quocirca omnium " fidelium pietatem excitare existimavimus, nt una Nobiscum " Vobisque clementissimum luminum et misericordiarum Patrem " ferventissimis humillimisque precibus sine interraissione orent, et " obsecrent, et in plenitudine fidei semper confugiant ad Dominum " Nostrum Jesum Christum, qui redemit nos Deo in sanguine suo, " Ejuaque dulcissimum Cor flagrantissimse erga nos caritatis victi- " mam enixe jugiterque exorent, ut amoris sui vinculis omnia ad " seipsum, trahat, utque omnes homines sanctissimo suo amore in- " flammati secundum Cor Ejus ambulent digne Deo per omnia pla- " centes, in omni bono opere fructificantes. Cum autem sine dubio " gratiores sint Deo hominum preces, si animis ab omne labe puris " ad ipsum accedant, idcirco calestes Ecclesire thesauros dispensa- " tioni Nostra commissos Christi fidelibus Apostolica liberalitate " reserare eensuimus, ut iidem lideles ad veram pietatem vehemen- " tius incensi, ac per Pcenitentiee Sacramentum apeccatorum maculis " expiati, fidentius suas preees ad Deum eiFundant, ejusque miseri- " cordiam et gratiam consequantur. " Hisce igitur Litteris auctoritate Nostra Apostolica omnibus et " singulis utriu.sque sexus catholici orbis iidelibus Plenariam Indul- ", gentiam ad instar Jubilfei conceJimus intra imius tantum mensis " spatium usque ad totum futurum annum 1865 et non ultra, a " Vobis, Venerabiles Fratres, aliiaque legitimis loeorum Ordinariis " statuendura, eodem prorsus modo et forma qua ab initio supremi " Nostri Pontificatus concessimus per Apostolicas Nostras Litteras " in forma Brevis die 20 mensis Novembris anno 1846 datas, et ad " universum episcopalem vestrum Ordinem missas, quarum initium " ' Arcano DivinaB Providentise consilio,' et cum omnibus eisdem " facultatibus, quae per ipsas Litteras a Nobis datse fuerunt. Volu- " mus tamen, ut ea omnia serventur, qua; in couimemoralis Litteris 682 APPENDIX IX. prasscripta sunt, et ea excipiantur, qaes excepta esse declaravimus. Atque id conoedimus, non obatantibus in .contrarium facientibua quibusoumque, etiam Rpeciali et individua mentione ac derogatione dignis. Ut autem omnis dubitatio et difficultas amoveatur, earundem Litterarum exemplar ad Vos perferri, jussimus. " Eogemus, Venerabiles Fratres, de intimo corde et de tota mente miseiicordiam Dei, quia et ipse addidit dicena : Misericordiam autem meam non dispergam ab eis. Petamus et accipiemus, et si accipiendi mora et tarditas fuerit quoniam graviter ofFendimus, pulsemus, quia et pulsanti aperietur, si modo pulsent ostium preces, gemitus, et lacrymse nostras, quibus insistere et iminorari oportet, et si sit unanimis oratio, . . . unusquisque oret Deum non pro se tantum, sed pro omnibus fratribus, sicut Dominus orare nos docuit. [S. Cyprian. Epist. II.] Quo vero facilius Deus Nostris, Vestrisque, et omnium fidelium precibus, votisque annuat, cum omni fiducia deprecatricem apud Eum adhibeamus Immacu- latam sanctissimamque Deiparam Virginem Mariam, quae cunctas hasreses interemit in tmiverso mundo, quaeque omnium nostrum amantissima Mater ' tota suavis est . . . ac plena misericordias .... omnibus sese exorabilem, omnibus clementissimam prsbet, omnium necessitates amplissimo quodam miseratui affectu' [S. Bernard. Serm. de duodecim prserogativis B.M.V. ex verbis Apo- calyp.], atque utpote Regina adstans a dextris Unigeniti Filii Sui Domini Nostri Jesu Christi in vestitu deaurato circumamicta varietate nihil est, quod ab Eo impetrare non valeat. Sufiragia quoque petamus Beatissimi Petri Apostolorum Principis, et Co- apostoli ejus Pauli, omniumque Sanctorum Ccelitum, qui facti jam amici Dei perveneruntad coelestia, regna, et coronati possident pal- mam, ac de sua immortalitate securi, de nostra sunt salutfi solliciti. " Denique coelestium omnium donorum copiam Vobis a Deo ex animo adprecantes, singularis Nostr® in vos caritatis pignus Apo- stolicam Benedictionem ex intimo corde profectam Vobis ipsis, Venerabiles Fratres, cunctisque Clericis, Laicisque fidelibus curae vestrae commissis peramanter impertimus. " Datum Komse apud S. Petrum die VIII. Deoembris anno 1864, decimo a Dogmatica Definitione Immactdatae Conceptionis Deiparae Virginis Mariffi. " Pontificatus Nostri anno decimonono. " Pins PP. IX." APPENDIX IX. 68i " SYLLABUS '- COMPLECTENS PE^ClrtJOS NOSTEiE iETATIS EEEOEES QCI NOTANTUE IN " ALLOCUTIONIBUS CONSISTOEIALIBUS, IN ENCYCLICIS ALIISQUE APO- " STOLICIS LITTEEIS SANCTISSIMI DOMINI NOSTEI PII PAPjE IX. "§L " Pantlieiamus, Naturalismus, et Rationalismus ahsolutus. " I. Nullum supremum, sapientissimum, providentissimumque " Numen divinum exsistit ab hac rerum universitate distinctum, et '' Deus idem est ac rerum natura, et iccirco immutationibus ob- " noxius ; Deusque reapse fit in homine et mundo, atque omnia " Deus sunt et ipsissimam Dei habent substantiam ; ac una eadem- " que res est Deus cum mundo, et proinde spiritus cum materia, " necessitas cum libertate, verum cum falso, bonum cum malo, et " justum cum injusto. " Alloc. Maxima quidem 9 iunii 1862. " IL Neganda est omnis Dei actio in homines et mundum. " Alloc. Maxima quidem 9 iunii 1862. " III. Humana ratio, nullo prorsus Dei respectu liabito, unions est " veri et falsi, boni et mali arbiter, sibi ipsi est lex, et naturalibua " suis viribus ad hominum ac populorum bonum curandum sufEcit. " Alloc. Maxima quidem 9 iunii 1862. " IV. Omnes religionis veritatis ex nativa humanse rationis vi " derivant ; hinc ratio est princeps norma qua homo cognitionem " omnium cujuscumque generis veritatum assequi possit ac debeat. '' Epist. encycl. Qui pluribus 9 novembris 1846. " Epist. encycl. Singulari quidem 17 martii 1856. " AUoc. Maxima quidem 9 iunii 1862. " V. Divina revelatio est imperfecta et iccirco subjecta continuo " et indefinito progressui qui humanas rationis progressioni re- " spondeat. " Epist. encycl. Qui pluribus 9 novembris 1846. " Alloc. Maxima quidem 9 iunii 1862. " VI. Christ! fides humance refragatur rationi ; divinaque revelatio " non solum nihU. prodest, verum etiam nocet hominis perfectioni. " Epist. encycl. Qui pluribus 9 novembris 1846. " Alloc. Maxima quidem 9 iunii 1862. " VII. Prophetise et miracula in sacris Litteris exposita et narrata " sunt poetarum commenta, et Christianas fidei mysteria philoso- " phicarum investigationum summa ; et utriusque Testamenti libris ;' mytliica continentur inventa ; ipseque Jesus Christus est mythica " fictio. " Epist. encycl. Qui pluribus 9 novembris 1846. " Alloc. Maxima quidem 9 iunii 1862. 684 Ari'ENmx ix. " § n. " Rationatismus nioderatus. " VIII. Quum ratio hurnana ipsi religioni sequiparetur, iccirco " theologiciE disciplinse perinde ac philosophicse tractandEe sunt. " Alloc. Singiilari quadam perfusi 9 decembria 1854. " IX. Omnia indiscriminatim dogmata religionis Christians sunt " objectum naturalia scientias seu pbilosopliiEe ; et humana ratio " histories tantum exculta potest ex suis naturalibus viribus et " principiis ad veram de omnibus etiam reccnditoribus dogmatibua " scientiam pervenire, modo hsc dogmata ipsi rationi tamquam " objectum proposita fiierint. " Epist. ad Archiep.Frising. Gravissimas lldecembris 1862. " Epist. ad eumdem, Tuas libenter 21 decembris 1863. " X. Quum aliud sit philosophus, aliud philosophia, ille jus offi- " cium habet se submittendi auotoritati, quam veram ipse pro- " baverit; at philosophia neque potest, neque debet ulli sese " submitters auctoritati. " Epist. ad Archiep. Frising. Gravissimas 11 decembris 1862. " Epist. ad eumdem, Tuas libenter 21 decembris 1863. " XI. Ecolesia non solum non debet in philosophiam unquam " animadvertere, verum etiam debet ipsius phUosophise tolerare " errores, eique relinquere ut ipsa se corrigat. "Epist ad Archiep. Prising. (??-ay/sstmas 11 decembris 1862. " XII. Apostolicse Sedis Eomanarumque Congregationum decreta " liberum soientise progressum impediunt. " Epist. ad Archiep. Frising. Tuas libenter2\ decembris 1863. " XIII. Methodus et principia, quibus antiqui doctores scholastici " Theologiam excoluerunt, temporum nostrorum necessitatibus " scientiarumque progressui minime congruunt. " Epist. ad Archiep. Frising. Tuas libenter 21 decemtris 1863. " XIV. Philosophia tractauda est nulla supernaturalis revelationis " habita ratione. " Epist. ad Archiep.Frising. Tj/as /iJenier21 decembris 1863. " N.B. Ciim rationalismi systemate cohajrent maximam partem " errores Antonii Gunther, qui damnatur in Epist. ad Card. Archiep. " Coloniensem Eximiam tuam 15 iunii 1.S47, et in Epist. ad Episc. " 'Wratislaviensem Dolore liaud mediocri 30 aprilisl860. " § in. " Indiffereniismus, Latitudinarismus. " XV. Liberum cuique homini est earn amplecti ac profiteri reli- " gionem, quam rationis lumine quis ductus veram putaverit. " Litt. Apost. MnltipUces inter 10 iunii 1851. " Alloc. Maxima qnidem 9 iunii 1862. APPENDIX IX. 685 " XVI. Homines in cujusvia religionis cultu viam asternse salutis " reperire seternamque salvitem assequi possunt. " Epist. encycl. Qui phiribus 9 novembris 1846. " Alloc. Ubi primum 17 decembris 1847. " Epist. encycl. Smgulari quidem 17 martii 1856. " XVII. Saltern bene sperandum est de aeterna illorum omnium " salute, qui in vera Christi Ecclesia nequaquam versantur. " Alloc, Singulari quadam 9 decembris 1854. " Epist. encycl. Quanta conficiamur 17 augusti 1863. " XVIII. Protestantismus non aliud est quam diversa ejusdem " Christiana; religionis forma, in qua seque ac in Ecclesia Catholica " Deo plaoere datum est. " Epist. encycl. Noscitis et Nobiscum 8 decembris 1849. "§ IV. " Socialismus, Communismus, Societates clandestince, Societaies " bibliccB, Societates clerico-liberales. " Ejusmodi pestes ssepe gravissimisque verborum formulis repro- " bantur in Epist. encycl. Qui plwibus 9 novemb. 1846 ; in Alloc. " Qitibus quaniisque. 20 april 1849 ; in Epist. encycl. Noscitis et " Nobiscum, 8 dec. 1849 ; in Alloc. Singulari quadam 9 decemb. "1854; in Epist. encycl. Quanta conficiamur mcerore 10 augusti " 1863. "§V. "Errores de Ecclesia ejusque juribus. " XIX. Ecclesia non est vera perfectaque societas plane libera, " nee poUet suis propriis et constantibus juribus sibi a divino sue " Fundatore collatis, sed civilis potestatis est definire qu» sint " Ecclesiffi jura ac limites, intra quos eadem jura exercere queat. " Alloc. Singulari quadam 9 decembris 1854. " Alloc. Multis gravibusque 17 decembris 1860. " Alloc. Maxima quidem 9 iimii 1862. " XX. Ecclesiastica potestas suam auctoritatem exercere non " debet absque civilis gubernii venia et assensu. " Alloc. Meminit unusquisque 30 septembris 1861. " XXI. Ecclesia non habet potestatem dogmatice definiendi, reli- " gionem CatholicK Ecclesia; esse unice veram religionem. " Litt. Apost. Multiplices inter 10 iunii 1851. " XXII. Obligatio, qua catholici magistri et scriptores omnino " adstringuntur, coarctatur in iis tantum, quas ab infallibili Ecclesite " judicio veluti fidei dogmata ab omnibus credenda proponuntur. " Epist. ad Archiep. Frising. Tuas Zz"J«nv)i.\ov tov 'Ai'aToXiaw ' AoTEpoi;, irpog ciaipwTitT^ibv twv v^eTepwv hvayvtjtrTwi'. T^ 10 Sgp/ou 1868. Ek tov ypacjieiov rfje M. npuiToavyKeWiae. H £v Tolg narptap)^f('oiC lvi(TKcij/is vepi Trpoirujo-Ewc ele riji' it' Pw/irj avyKpoTr)6r)iTOfiivjfv Tiiivolov. Tij ■KEfiTTTr} T^Q TTapeXBovfTriQ l63o/ufi?«s (3 8^.piov) eXdoiTiQ Ete riji' M. TlpwToiTvyKiWiay ab^a^ec Bvu) in Tjjg ffwodlag tov K. Jipovi^ovrj, TOTroTr)pj)T0v Tijg A. M. Toii Pwfjrjg [laTra Ec KoivrrraiTtiouTroXEi, eEr]Tri(Ta.vTo ijyi^.pav Ka\ wpav aKpot'ifTEbjg Trapa rw TiayaytwraTfo Ha- Tpiap-^r) £K fifpovg tov ^opi-TiaTa^ ws T0W0Tt]pr]Tov tov kv PLXopovi]i7tig i-at akpnilipuavvag, Patriarch. t'lyipdriaav ttoitec, Kat to5 Aofi-TiiTTa k^ayayovTog tK tov k-oXirov Testa pro- avroO diuXXaSioV n ^pvfToSErov fiSTo. vivai^tSwv kpvOpoTropvpu)v, /oai duces a opeyovTog avTO Talg X^P""" ''"'^ li'irpiapxc") o /HEr' auror a€6ac EtTTEv littlebook, 'EXXriviuTt. " 'Ei' aTrov(TiQ Xs'yErE, 0\KOviiEviKfiv ^vvolov, kai " tTTo^Ecwc, kiiy riyvoovfifv tov okottov kiA to Trepic^ofityiiy rije " iTTKTroXfjg Ka'i riig ap)(ac rfji; A. M., ev\apiaTii>t iiBi\op.iv airoSe^drj " ypapixa Trapa tov XlaTpidp-)^ov ttjq TlaXatcif Poifirjc irefiTrofieioy, " Trpoa^oKuiVTtQ v dKovnu/jev vinv ti. 'EtteiSij opitig r) Sia tuiv " e(prifj.cpiSii)V StaSoOtiaa j^Sj; vpo(TK\r]Tripioe tiriiTToXri i(papcpii)iTE rag " ap'^ae rrje A. M. apj^ac oXioq aTTt^SoviraQ elg rag T^g opdoSo^ov " 'AvaToXiKfjg 'EKKXj)Tiv Si lyKVKXiov eTriaroXfjc, KaTaSeiKvvoixTrig " CLTrXHg Kal (raf>u)£ Trjy avTiQEaiv tUv aprj^Siv Trjg'Pwfjrig wpog Tag ira- " TpoirapaSuTovg Kal 'AirouToXiKag, Kal oil fiovov ovk (.vapiOTriaaarig, " aWa Kal XvTn)Gaaiqg Tr}V A. M. "Ort Ss aXrjdwg SvffTjpEiTTriSrf tote " j; A. M., aTtiSfiE.ev ivapywg >; Trap' avTijg avTaTi^avTrfmr. Kal eteiSjj " 1/ A. M. Se>' ah'ETai TrapEKKXivovaa tuiv eavTrjg dpySiv, ovte fifiElg " 6el^ -^apiTi ki,EKXii'ap.Ev tHjv riixETEpwi', Sia tovto ovte viae XvTrag " aTtpyofJEv ra irapaaKEvaaw^EV aurw Etc f^arTjv^ ovte ava^Eirat TraXatac " irXriyae aitj^Hfitfla, Kai dj/EpEdiirai fiiari Ea^Ea/iiia ^ta crv^riTriiTEiav " Kal Xoyofia-)^iijy, a'lTivEg diroXriyovaiv uq ettI to ttoXv eig pii^Eig Kal " dTTE^fleiac, Ey w EKaTEpoi ai}jX£poy^ e'ittep ttote^ e^o/xev at'dyKjjy " Ei/ayytX(M7c Kai KOiywitKrj( aydirrig Kal iTVjj.7ra8eiag Sid tovq irEpirrTbt- '* ^uviTag Ti}v ^KKX7i/ " Xvnig Twv TOiovTioy H^riTTijiaTiav iaTiy ^ UTTopiKij. 'EtteiS)) Sr\X. " vTffjpiEy 'EiKKXriirla irpo SiKa alwyuiy, ra avra 'i-)(oviTa Sdy/iara ev te " 'AvaroX^ Kal Avast, iv tt) Trpeir^vTEpq. Kai rij viy. Puijuj;, dvaSpd- " fiwpEv EKaTEpog Eig Ei-Eivqv Kal 'iSuifiEy bTroTEponrpoailiivToii a(j>E7Xoy " EKKmrTEaDii) i; wpoadliKri, idv VTrdp-)(r) Kal oirov uircip^fi' TrporrTifHirdu} " TO dcpaipEBiy, idv virdp'^Q, Kal oirov VTrdpyiC Kal tote avfiiravTEg " dveir-aiadi'iTwg EvpEOr)iT(')fiEHa Eig to avTO o-tj^eToi' ttjq KaQoXiKTJg " opOoSoUag, ottoSev f] Piofirj twv Ki'iTui aliivwv ixaKpvvo/xivri ivl '' ;uaXXo»', dpiaKETai vd vXarvvr) to \d(Tfia Sid viuiy ^si SuyfiaTayv Kal " dEairi/TfidTwr, EKTpETrofjiviay TTJg hpdg irapatioffEWf." O A. 'A66df Aiiv TfVrac. On-oiac rivag iyyoE'i Siaipiovovaag dp'xag T] vfiETEpa'AyioTrig; 'O narpifip^jjc. " 'Iva TrapaXElirui/jEv ra KadiKaOTO, iifiElc, iif oaov APPENDIX XI. 739 viraptei i} Ek.(.X?/(r/a row lnorripoi iw\ Trjg y^Cj ^tv Svvafxeda va " TTupaSc^euifiei', OTi iv rp oXj; 'EKK\riai tov aylovTli'svfiaTnc, TOV (piDTttrai'Toe eiriarje tovq wayraQ- fj on ovrog, ^ eifiioj 6 Ila-pt- apXVe Kni IlaTrac tV^or ra TrpEtr^tJa r^f i'Spnc ovk utto Suvo^icou " avOpiiJTrlvov, aW in delov, i>g XiycTe, SiKniov, Koi to. tovtoii; Ojxoia.'' O A . ab6«e. " 'H 'P(I)/jj; ovloKwQ TtpoTiQiTai va fitTa^aKri rag " «PX"f n"'"7c." O B . ag^dc. " 'En-£t?7; )'; ^XupEiTiri) Svi/cSor, avaKpLvaaa to. " rotaCra, r/rwo-E rag liiui 'EiicXjjo-tac, viz£\ii(pQr]nav Si tivcc 'i^iD Trjc tviitaewc, TovTvve irpoaKaXii 6 ay. TvoTrip lie Tf)v Trpoirexv O'tKOVftt- " viKrjv Siri'oSor, 'u'a koi ovtoi TrXripo(j>opridipTe{ Ei'todwmi'." O TLarptapxTjc. " Xlciffa ippeBrjaav «.ai iypaiiriaav Kara re 7)jc $XwpEi'ni'^t Sui'dJou, porov InraihtvTog avBpujTrug ii'Si\erai v ayvorj' " ^ Se vjx. oaiorric ovk ioTE Ik tov kvkXuv tovtov. Kai jj^i; atro rfje " TsXcvTaiag (rvieSpidatiog tKtifuv tov KaTifiayKaafxivov SvitSptou " api,afxii'u>v tuiv ai'TeyKXi]aXijg 6?riy6g iravTog ^pia-iarov Knt i-n-tiTKovov Trjg Avucuig, " TOV elXiKpiyidg TrodovyTiig Kal ^rjTovyTog Ti)y EuayyEXn'^r aXii6tiay. " ''EKelvoi tlai to VTzipTaroy KpiTijptoy rjjg xfi^'^TiavtKfjg a.\r]titiag. " "EKslt'Oi tiaiy 1] affcjiaXrig oSog, i(f »}s SviafjeOa i a avytu'TrjOw/jtey ev " T(3 dyi'w i€oXiay irepi Tivuiv ioyparior aiiTwy, " OeXovtri va avveXdioiri, nvvep\eiTdw<7ay Kal avaOeiupeirwaay aWa " Kadrjiiepav, ei (iovXovTaC rjfJt'iv oiSEpi'or afi(j>i€oXiar txofjev Trepl twv 3 B 2 Apostles all equally enlight- ened by the Holy Ghost. The Synod of Flor- ence, child of hunger, fraud, vio- lence, died in its swaddling clothes. What is an (Ecumeni- cal Coun- cil. The Seven (Ecumeni- cal Coun- cils. 740 APPENDIX XI. The proper mode of summon- ing an (Eoumeni - cal Coun- cil. Christian unity must rest on historical grounds. The invi- tation re- turned to the Pope. " TrarpoTrapaSoTiav Ka\ a.va\\otwTii)v ^oy/ieiTiav Trjt; ihatStiaQ, Kai " a\\£vytt (ie€alii)e t^v fivrinrjv v/xw)', on a'l OiVou^e- " vtKct) HivvoSoi a\\u)Q TTiDQ (TvyeKpoTOVVTO, 71 OTTWQ ^S)) SieKrjpv^ev II " A. M. 'Eav 6 Tfjg 'Pw/jrie Ma/c. IlaTraf ^(TTraftro Trjy cLwovToXiKriv " laoTifitav k'ai i(7af£\(j)iai', tTVjjtTrtv, wc iv (Vote "iirot rriv ai,iav Koi " TrpuiTog Ttj TijQ kSpae ra^et Kara, kuvovlkov finaioi', v onrtuffurp " ypa^fxa icialrepov irpoq et^atrroy rwy Tlarpiap-^ioi' Kai rwv Svi'd^w*' " riis AraroX^t", ""X '''" ^'"'i-^ciXr) iyKvK\iiD<; Ktil br)ixoinoypa(piKuic, u>e " TrajTwj' ' Ap^o"' !■'«' Atufforijc, dW iVa ipwrijoy dhXfove dieXv " TraiTttJc tvbtattiig' kv Bi TOiavTr) -KtpnrTuxrti jxtTaXinrrig iia^t^aiovpiEV " vfur, OTi TTtpiTTr}!' kai aKapwov ropii^ofiev Tfjv re npucrKXrjtTiv kai oizip " avrtwKpiptTt tviaToXifia'tov tovto (^yXXahiov^ O A . d&^ag. " Avvarai apa yt jjLovrf r) '!rpoottv\fi ra KaTopdoifn) " Tr}v st'uiair ; 'Aadtvovi'Tog Tivog dvdpwirov, tl Kai aTrcKSt^OfttOa ttiv " Otpairtiav avrov trapk tov Qiov, kai tirl tovtu diztvUvvojitv ikTtPtlg " cv-)^ag Kai Strig dvaaTavTtg Kai diroSovTtg tov dvi]KOVTa atSaofioi', Kai sE Tomkins and-Jencke'n 18 Civil Service Exam. (Indian).' Cutler ... 35 Circumstantial Evidence. Wills 31 Code, English Law. Blaxland , 37 Collieries. Bainbridge 33 Colonial Law. Barbados '. 35 South Australia ... 35 Commentaries. Stephen's Blackstone's 4 Commercial, Law. Chitty 37 Treaties. Hertslet ... 37 Forms. Crabb ... 20 Common Eorm Practice. Coote 7 Cbmmon Law, Abridgment. Petersdorff 28 At Chambers. Parkinson 2Q Costs. Gray 35 Pleading. Chitty, jun 22 Greening 36 Williams S3 Practice. Dixon 13 Kerr 17 Lush _ 13 Compensation, Law of. Ingram n Shelford 25 Consolidation Acts. Shelford 25 Constitution. May 29 Stephen ... .. 4 Contraband of War. Deane 36 Moseley 36 Contracts, Specific Performance. Fry ... .' 30 Conveyancing, Introduction to. Lewis 16 Practice. Barry 15 Rouse 12 Smith 31 Tudor 17 Forms. Christie 20 Crabb 20 Bouse 12 Shelford 20 Convictions (Summary), Synopsis of. Oke ... 24 Forms. Oke..._ ^ ... 24 Co-operative Societies. Brabrook 12 Copyholds, Enfranchisement. Rouse 21 Law of. Scriven 23 Coroner. pio» Baker 30 Corporations, In General. Grant ... 22 Municipal. Sewell.., 37 Costs, Law of. Gray ... 35 County Courts. Davis 6 Criminal Law. Davis 34 Oke 24 Curates. Field 28 Customs. Hamel 39 Deeds. Tudor 17 Descents. Fearne 37 Divorce. Practice. Browning 23 Drainage. Woolrych 22 Easements. Latham 18 Washburn 36 Ecclesiastical, Practice. Coote 36 Judgments. Burder ». Heath ... 38 * Hebbert v. Purchas 38 Long V. Cape Town 38 Martin u.MackonochieSS Westerton v. Liddell 38 Election, Law. Davis 23 England, Laws of. Blackstone 4 Francillon 35 Stephen 4 English Bar. Pearce 35 Smith 34 Equity, Doctrine and Practice of. Goldsmith 6 Draftsman. Lewis ... 16 Pleader. Drewry ... 29 Suitin. Hunter ... 16 See Chancery. Evidence, Circumstantial. Wills 31 County Court. Davis 6 Law of. Powell '; ... 32 Wills. Wigram ,' ... 33 Examinations. Preliminary, I. Bejiham- ../ 17, 40 Journal -4 5,39 Intermediate a^d Final. Mosely .f. ... 21 Fences. Hunt ' ... 10 Fisheries. Oke 24 Fixtures. Brown Foreshores. .. H- Hunt 10 Williams v. Nicholson 35 INDEX TO CATALOGUE. — Si rorms,' ' ■ . ' PAOE Conveyancing.CTabh... 20 Rouse 12 Magisterial. Oke .... 24 Pleading. Greening 36 Probate. Chadwick 26 friendly Societies. Brabrook 12 Gaius' Roman Law ... 19 Game Laws, oke ... 24 Gaming. Edwards ... 37 Gas Companies Acts,. 25 Gavelkind. Robinson .. 37 Guernsey (Law of). Bowditch 36 Highways. Glen ... 30 House of Lords, Practice. May ... 29 Digested Iiukx to Cases. Clark 15 Idiots. Phillips 30 Indian Penal Code. Cutler and Griffin ... 34 Indian Statute Law. Field 34 Industrial and Provi- dent Societies. Brabrook 12 International Law. Deane 36 Hamel 35 Phillimore ... ... 19 Irish Land Act. Butt 31 Jersey (Law of ). Bowditch 36 Joint Stock. Banks. Grant ... 26 Companies. Shelford 7 Jmdsprudence. FarmofLaw. Holland 32 Law Magazine 39, 40 Justice of Peace'. Oke 24 Landlord and Tenant. Faweelt 8 Law Exam. Journal 6, 39 Law Magazine... 39,40 Law Studies. Cutler's Lecture ... 35 Francillo'n 35 Mosely 21 Smith 34 Stephen's Blackstone 4 Leading Cases, Real Property. Tudor 17 Leases. Crabb 20 Rouse ... 12 Legacy Duties. Shelford 21 Legitimacy. Gardner Peerage ... 35 Life Assurance. Blayney 37 Libel. Starkie 14 Local Government. Glen 31 Lords Chancellors, &c.. Catalogue of. Hardy 37 Lord Mayor's Court. Brandon ' 31 Lunacy. ] Phillips ... so Magisterial Law, Ads. Davis .„. ... 84 Practice. Oke ... 24 Forms. Oke 24 Maritime Warfare. ■ Deane 36 Hamel 35 Marriage Acts. Bum .. 37 Master and Servant. Davis 22 Master and Workmen. Lovesy... 27 Mercantile Accounts. Pulling 36 Militia Laws. Dwyer... 37 Miaes and Minerals. Bainbridge ... ... 33 Mortgages. Fisher 9 Rouse 12 Municipal Elections. •Sewe;l..._ 37 Naturalization. Cutler II Negligence. Saunders... 11 Neutrals. Phillimore 19 Nisi Prius. Leigh ... 36 Nuisances. Glen .. 31 Parliamentary. Clifford & Stephens ... 14 Davis 23 May 29 Partnership. Dixon 13 Pothier 3' Patents. Curtis SG Norman 35 Peerage Claim. Finlason's Wiltes ... 35 Lemarehant's Gardner 35 Petty Sessions, oke .. 24 Pleading, Common Law. Chitty, Jun. ... 22 Greening 36 Williams 33 Equity. Drewry ... 29 Lewis ... 16 Guide. Anstey ... 37 Poor Law Orders ... 25 Precedents, Conveyancing. Crabb 20 Rouse ■ 12 Preliminary Examma^ tion journal 40 Priority. Fisher ... 9 Private Bills. May ... 29 Prize Law, Lushington 27 Probate, Practice. Coote ... 7 Forms. Chadwick ... 26 Duties. Shelford ... 21 Provident Societies. Brabrook 12 Public Health. Glen 31 Questions On Stephen's Comments. 4 Bailways. 'age Redfield ... ... 36 Shelford 25 Compensation. Ingram 1 1 Carriers. Powell ... 34 Beal Property. Tudor ... 17 Chart, Fearne .._. 37 Eeferees' Court Practice. Clifford & Stephens ... 14 Beglstration. Davis ... 23 Keligion. Church and State ... 38 Supremacy of Crown . 38 Jleligious Confession. ■_ Ba'deley S& Eitua,l.' Bayford 38 Bullock 38 Hamel 38 Phillimore 38 Boman Law. Gains 19 Ortolan 10 Tomkins 10 Tomkins and Jencken 18 Savings Banks. Grant so Sciences (the) andLaw 35 Sea Shore. Hunt ... 10 Settlements, Voluntary, &c. Cutler 35 Voluntary. Hunt ... 39 Sewers. Woolrych ... 22 Sheriff. Sewell 37 Sheriff's Court. Davis 8 Short Hand. Gumey... 30 Slander, starkie , ... 14 Solicitors' Bookkeeping. Coombs 27 Specific Performance. Fry 30 Stock Exchange. Keyset 37 Succession Duty. Shelford _.. _ ... 21 Summary Convictions. Oke 24 Suit in Equity. Hunter 16 Tenant, Landlord and. Fawcett 8 Tithes. Schomberg ... 37 Trades Unions. Brabrook 12 Treaties. Hertslet . 37 Trusts, Charitable. Tudor 18 Turnpike Laws. Oke 24 Vesdors & Purchasers. Seaborne G Water Companies Acts 25 Waters. Hunt ... Wills. Coote Crabb . Rouse Tudor Wigram Winding-up. Grant Shelford Window Lights. Latham 10 7 20 12 17 33 26 7 18 ?*- LAW WORKS PUBLISHED BY Stephen's Blackstone's Commentaries. — Sixth Edition. 4 vols. 8vo„ £i : 4«. cloth. Mr. SERJEANT STEPHEN'S NEW COMMENTARIES ON THE LAWS OF ENGLAND, partly founded on Blackstone, The Sixth Edition, by Jambs Stephen, LL.D,, of the Middle Temple, Barrister- at-Law, formerly Recorder of Poole, and late Professor of English La'w at King's College, London. " It would be impossible, ■without entering minutely into details, to notice at any length this most valuable work. It ia one! which cannot be too highly recommended, not only to the profession but to the general public. It is a great mistake to act upon the notion that the study of the law is a matter of in- terest to lawyers only. Now there is no work which gives a summary of the English law at once so exhaustive and intelligible to th6 gene- ral reader as this publication of Dr. Stephen. He has incorporated into it all those portions of Blackstone's great work which would atthepre- uentday be useful to the reader." Xawi/agrasi'ne. '*To redeem Blackstone from oblivion, it became necessary that his work should be edited by a lawyer as able and a scholar as graceful as Blackstone himself. Mr, Ser- jeant Stephen, more than twenty years ago, conceived the happy thought of introducing The .necessary alterations Into the text itself, and,, as he says in his preface, 'interweave liis 6wn composition with it as freely as the purpose of general improvement it might seem to r^equire.' The first edition was favor- ably received, acknowledged at once as an able reproduction of an invaluable treatise on English law, and has since passed rapidly through successive editions, till it has become the acknowledged students' text book, and is accepted by the critics as a standard work, Mr. James Stephen, a no less distinguished and painstaking legal writer than his father, has with equ^ skill and research, super- intended the later editions, made the amend- ments rendered necessary by alterations in the law, and incorporated and commented upon recent statutes, judgments and decisions with as good an arrangement, as bold a grasp, and with as much felicity of style, adapted to and reading smoothly with that portion of Blackstone's text which still remains, as his predecessor in the same path ; and the four volumes nowpublished may be safely regarded as a full exposition and a sound authority on English law to the present time." — LawJownal. "This new edition of the well known Stephen's Commentaries deserves a cordial welcome, for few years have been more event- ful in legislation than those which have passed since the publication of the fifth e(lition. The skill with which the new matter is incorporated with the old is particularly remarkable, and in ppite of the incongruity of the niateriaU, and the threefold authorship of Blackstone, Ser- jeant Stephen, and the present editor, the re- sult is perfectly homogenous and satisfactory. Indeed the 'noting up' appears to have been done throug)iout with much ingenuity and in- dustry, and the alt^ations, great and small, to have been made with excellent judgment, \fe have no doubt that the work will in its most recent shape retain all its original popu- larity, "We very sincerely recommend this stan^rd text l]uok to all members of the profession. To the student it is simply in- valuable, but it is also a useful companion to the most" experienced lawyer." — Solicitors* Journal. " The popular notion of the study of law is, that it is dry. No person who reads these Commentaries will call it so. It is a fasci- nating bpok. After six editions, it is im- possible to say anything new of a standard work like this. We can but repeat that Stephen's Blackstone is indispensable, not to the law student alone, but to all who take part in public affairs, and especially to ma- gistrates, who ought to be examined in it before they are permitted to sit upon the bench. Nay, it may be affirmed that no gentleman can be considered properly educated unless he has acquired sp much knowledge of the law of England as is contained in Blackstone noted up by Stephen." — Law Tones. " How careful Mr. James Stephen, the pre- sent able editor, is to continue this work may by reference be ascertained. Mr. Serjeant Stephen, by his great ability, by his unwearied industry, hissimplicity and clearness of diction has made himself the first tutor to English law students. With a knowledge of the existence of these Commentaries, the student need not ask, with what work am I to commence my legal studies ? Here he wijl find every branch of English law ably treated on. Not only is the work an essential to the beginner, but it will be found of the greatest use at all times, as well alter as before call or admission. Any praise on our part of such a work is wholly unnecessary ; as we have before remarked, we feel assured we need do nothing more than announce a new edition, to cause an eager demand amongst all law students, and indeed amongst every one wishing to gain an insight into the laws of his conn try. "^Zaw Examina- tiojn Reporter. "A very valuable feature is the reference made to the cases on each point. This con- stitutes the work a law library on a small scale. It is a book which is indispensable to every student of the law, whilst practitioners will find it to their advantage to consult it frequently, since they will find therein the law laid down scientifically, concisely, and, above all, accurately." — Irish Law Times. b- Questions on Stephen's Blackstone. 8vo., 10s. &d. cloth. QUESTIONS FOR LAW STUDENTS on the SIXTH EDITION of Mr. SERJEANT STEPHEN'S NEW COMMENTARIliS on tlie LAWS of ENGLAND. By James Stephen, LL.D., of the Middle Temple, Barrister at Law. " Nothing can be more usef\il than a series of students, and touching as it does on every of questions on a book like Steplieu's Black- branch of the law." — Law Magazine. stone,- intended as it is principall)^ for the use i ii— MESSRS. BUTTERWORTH, 7, FLEET STREET, E. C. 5 THE LAW EXAMINATION JOURNAL AND LAW STUDENT'S MAGAZINE. Published on the morning of the seeond day after each respective Final Hwaminationjn Hilary, Easter 'Trinity and Michaelmas Terms in each year. Each Number price Is., by post Is. Id. ; or annual subscription, payable in advance, is.,,by post is. id. CONTENTS OF No. I.— Michaelmas, 1869. I. County Courts, their Merits and Defects OS Local Tribunals. By the Editor. II. Summary of new Decisions |u Banco and at Nisi Prius. III. Analysis of the more important praetical Statutes of 32 & 33 Vict. IV. Intermediate Examination Questions and Answers (T. T. 1869). V. Final Examination Questions and An- swers (M. T. 1869). VI. Noies on the Examinations. VII. Correspondence. CONTENTS OF No. 11.— Hilary, 1870. | 1. Note by the Editor. II. On Attornment in Mortgages. III. Digest of important recent Decisions. Answers (M. T. 1869). V. Final Examination Questions and An- swers (H. T. 1870). VI. Correspondence. CONTENTS OF^To. III.— Easter, 1870. | I. On the Fusion of the Two Branches of the Profession, by the Editor. IL Digest of important recent Decisions. IIL Intermediate Examination Questions and Answers (H. T. 1870). IV. Final Examination Questions and An- swers (E. T. 1870). V. Reviews of New Books. VI. Correspondence. *^ CONTENTS OF No. IV.— Trinity, 1870. | I. Leading Article on the Fusion of the Two Branches of the Legal Profession, by the Editor, concluded. II. Digest of important Legalp),ecisions. III. IntejTnediate Examination tjuestiona and Answers (Easter, 1870). IV. Final Examination Questions and An- swers-CTrinity, 1870). V. Reviews of New Bboks. VI. Correspondence. CONTENTS. OF No. V.— Michaelmas, 1870. | T. On the Legislation of 1870. By the Editor. II. Digest of important Legal Decisions. III. Intermediate Examination Questions and Answers (Trinity, 1870). IV. Final Examination Questions and An- swers (Michaelmas, 1870). V. Reviews of New Books. VI. Correspondence. CONTENTS OF No. VI.— HUary, 1871. . , | I. Our Jury System. By the Editor. II. Digest of important Legal Decisions. III. Intermediate Examination Questions and Answers (Michaelmas, 1870). IV. Final Examination Questions and An- swers (Hilary, 1871). V. Reviews of New Books. VI. Correspondence. CONTENTS OF No. VII.— Easter, 1871. | I Some Kemarks on the Married Women's Property Act, 1870. By the Editor. II. Digest of important Legal Decisions. III. Intermediate Examination Questions and Answers (Hilary, 1871). IV. Final Examination Questions and An- swers (Easter, 1871). V. Reviews of New Books. VI. Correspondence. CONTENTS OFSNo.Vin.-OJrinlty, 1871. j I. On the Necessity of providhig a Public Prosecutor. By the Editor. II. How Mr. Mansfield Denman passed his " Final." By E. H. III. Digest of Cases. Note by the Editor. | IV. Intermediate Examination Questions and Answers (Easter, 1871). V. Final Examination Questions* and An- swers (Trinity, 1871). VI. Correspondence, &c. & . : ^____j) -» lAW WORKS PUBLISHED BY Davis's County Courts Practice and Evidence.— 4th Edit. 8vo. 38s. cloth. THE PRACTICE and EVIDENCE in ACTIONS in the COUNTY COURTS. By James Edtvard Davis, of the Middle Temple, Esq., Barrister-at-Law. *»* This is the only work on the County Courts winch gives Forrns of Plaints, and treats fully of the Law and Evidence in Actions and other Proceedings in these Courts. *' Mr. Davis's work has erown with the growth another feature of this work. Besides thePBAc- of hissubject. TheoriginaleditioD wasanianual— tice, it contaius a complete treatise on livi- M, title as modestias that of the first County Court dence in the County Courts, after the manner Statute. 'An Act for the more easy Recovery of Seiwyu's Nisi Prius. Each of the subjects of of Small Debts;'— and now the fourth edition ep- litigation ordinarily broughc before the courts pears under the title, fully justified by the con- is separately treated.and the law minutely stated, lents, of The Practice and Evidence in the County with the evidence required to sustain or to defend Courts. Mr, Davis*s work has stood almost as the action. long a trial as the County Courts themselves. " It is undoubtetlly the best book on the Prac- The chapters on Evidence, clearly and tersely tice of the County Courts."— jCfla" Times. written, will repay the perusal of everycommon "^ textbook which Is well known in both law practitioner, whether m the County or the branches of the Legal Profession. From a small Superior Courts. Ihe book is altogether the- beginning it has gradually grown into a bulky roughly well turned out down to its ready-cut volume, and now contains an exhaustive expo- l)ages. for which mnovation all Persons, espe- sijioQ of the Law and Practice relating to the cially reviewers, will thank the publishers."— County Courts. The third pait of this manual J^av) Journal. ,,,..., . ^ contains a valuable digest of the Law of Evi- " From a humble beginning It has grown into a ^gncg 35 applicable to the procedure of the very ponderous voume, vnth all necessary forms County Courts. In this particular it certainly for practice, and full instructions to the court. and excels all the other text1)ooks ou the subject, to the practitioner aaie a great suc- cess. There is hardly any portion of the law at the present day so important as that which ;re- lates to joint stock companies, and that thi.s work will be the standard authority on the subject we have not the shadow of a doubt. "--iffa' Journal. " After a careful examination of this work we are bound to say that we know ol no other which .surpasses it in two all-important attri- butes of a law book : first, a clear conception on the part of the author of what he intends to do and how he intends to treat his subject; and secondly, a consistent, laborious and intelligent adherence lo his proposed order and method, AH decisions are noted and epitomised- in their proper places, theprdctice-decisions in the notes to Acts and Rules, and the remainder in the introductory account or digest. In the digest Mr. Fiicairn goes into everything with original research, and uothing seems to escape him. It js enough for us that Mr- Pitcairn'.s performance IS able and exhaustive. M othing is omitted, and everything is noted at the proper place. In ron- clusion we have greatpleasure in recommending this edition to the practitioner. Whoever pos- sesses it, and kee))s it noted up, will be armed on all parts and points of the law of joint stock companies." — Solicitors' Journal. " Although nominally a second edition of Mr. Shelford's treatise, it is in reality an original work, the form and, arrangement adopted by Mr. Shelford have been changed and, we, think, ini^ proved by Mr. Piteairn. A full and accurate in- dex also adds to the value of the work, the mei-its of which, we can have no doubt, will he fully re- cognized by the profession."— iaa) Magazine. " 'I'his book has always been the vade mecum on company law. and will, apparently, long con- tinue to occupy that positioii. Jt is perhaps even more useful to the legal practitioner than to the man of business, but still it is the best source of information to which the latter can go>" — Finpn^ cier and Money Market Review. ~i> Fawcett's Law of Landlord and Tenant. 8vo., 145. cloth. A COMPENDIUM of the LAW of LANDLORD and TENANT. By William Mitchell Fawcett, of Lincoln's Inn, Esq., Bari'ister-at- Law. ** This new compendium of the law on a wide and coDiplicated subject, upon which information is constantly reauired by a vast number of per- sona, it sure to be in request, li never wanders from the point, and beiui; intended not for stu- dents nf the law, but for Jessors and lessees and their immediate advisers, wisely avoids historical disquisitious, and uses language as uniechnical as the subject admits. It may safely be assumed to contam information on all the ordinary ques- tions which either contracting party may require to be answered."— Z/aajJimmo/, *' The author has succeeded in compressing the whole of his subject within the reasanable com- pass of 373 pages. Jt may roughly be said of Air. Fawcett's work, that it is statutory through- out, in accordance with the predominant cha- racter of the law at the pre.^ent day; and Mr. tawcett takes advantage of this characteristic of modern law to impart to his compendium a de- gree of authenticuy which greatly enhances its value as a cunveuieut medium of reference, for he has stated the law in the very words of the authorities. We have discovered plain utility to be the aim andendof Mr. Fawcett's treatise, and an ambitious merit to be that of Mr. hmith and Mr. Soden's. Probably we should be justified in saying that Mr, Fawcect has more nearly reached his aim. lower as it is, thau Mr. fimith and Mr. fjoden."— 'Xazf Magazine. " The first thine which strikes us with regard to Mr. Fawcett's nook is the extreme terseness and verbal accuracy of the language employed. In this respect he sets a most laudable example to text book writers. The amount of infor- mation compressed into the book is very large. The plan of the book is extremely good, and the arrangement adopted has enabled the author to put together in one place the, whole law on any particular branch of the subject, and to avoid repetitions. Thus not only is it easy to find what the author has to say on any particular point, but when we have found a reference to it in one place, we may be satisfied that we have found all the book contains upon the point. In this respect, though probably from its smaller size it mnst contain less information than Woodfall, it will be found far more convenient for ordinary use than that treatise, in which repetitions are so frequent that a hasty searcher usually fails to find anything like all that is contained in it upon his point. The excellence of Fawcett in this respect will make it most convenient for noting new cases, as the right place for inserting them will be found without much difficulty. Moreover, every possible assistance by marginal notes, index, headings of chapters, &c., is given forfinding thecontentsof the book. We find far more repetitions in Mr. Cave's thm in Mr. Faw- cett's work, and more cases in whch the whole law on any point has to be looked for, not in one Sloce but in several ; in this respect, theiefore, Ir. Fawcett's book has an advantage. We may add that Mr. Fawcett's references are usually given to two sets of rej)orts, while Mr. Cave's are to one only. "^Soliciiors^ Journal, ** Woodfall was, and perhaps is, the great authority on this subject. But tiis book is bulky, much of it is obsolete,, and much useless, and the legislature and the judtjes hare made many changes which sufficiently justify Mr, Fawcett in his undertaking of a new treatise on a. subject of such wide-spread interest. His aim, how- ever, is condensation. He contents himself with a plain statement of the existing law, pru- dently omitting all matters of merely historical interest and topics collateral to the special sub- jects ; he has deemed it unnecessary to treat of the details of judicial procedure, or to enact a mass of urecedents of leases which are already possessed by the profession in other works. Above all, it has been his purpose to state the law in the language of the authorities, presenting the principles enunciated in the very words of the judges. Another excellent feature is a con- cise sunimarv of the efftct of each enactment in the marginal notes. It will be seen from this that the book is thoroughly practical, and,, as such, will doubtless fina a favorable reception from the profession." — Laa Times. " This is a work which we can confidently re- commend to the notice not only of the members of the legal profession, bui to such of our general readers as have anything to do with the letting of either houses or land. In the carrying out of this task he has, to our minds, beeu very suc- cessful. The arrangement of the work is good, the style clear and concise, and the range of au- thorities unusually wide. In the appendix Mr. Fawcett inserts forms of shore leases, which will be found useful."— Piti/ic Opinion. " Giving a clear and practical view of the subject, unembarrassed by nistorical associations ' or unnecessary derails of procedu;-e. but p;reseut- ing the existing law in a form as intelligible to the public as useful to the lawyer ; the references are plentiful, and the indices all that they should he,*'— Daily Telegraph. *' A Compendium of the Law .of Landlord and Tenant, by Mr. William Mitchell Fawcett, seeks to present its existing state in themtst condensed and practical manner." — Times, ** To disencumber the law of landlord and tenant of surplus words and tedious arguments is a worthy and useful design, and it is skilfully accomplished iu the work before us. It is a comprehensive exposition of the important sub- ject of the law of landlord and tenant, and can- not fail to be appreciated and generally referred to.'*— News (if i/te World. " We cordially commend the work, not only, as we have said, to the professional reader, as a really 'handy' book of reference, but also to the owners and occupiers of property generally. as placing succinctly before tnem all the leading difhculiies which are likely to occur, but which, with a reasonable amount of attention to the prin- ciples here laid down, may be successfully avoided, Mr. Fawcett deserves the cordial thanks of the profession and of the public for this excellent addition to the legal literature of the subject, and for the pains he has taken to render his production as complete and as com- pact as \)ossible, withiu the reasonable limits to which his work is restricted."— Momm^' Ad- vertiser. " This appears to us to he a book of consider- able practical value, aud one likely to be found useful, not merely by members of the legal pro- fession, but also t>y such laymen as, in tue cha- racter either of landlord or tenant, happen to be interested in land or house property. Indeed, so clearly and intelligibly does the book read, that for one instaut— shall we confess it?- a doubt crossed our mind. Like the chairman of quarter sessions, of whom Talfourd speaks in one of his essays, we hesitated to accept as good law, what appeared to us such excellent sense,"— £cAo. -O -^^ MESSRS. BUTTERWORTH, 7, FLEET STREET, E.G. 9 Fisher's General Law of Mortgage. — Second Edition. Two vols, royal 8vo., 555. cloth. THE LAW of MORTGAGE, and other Securities upon Pro- perty. By William Richard Fisher, of Lincoln's Inn, Esq., Barrister at Law, Second Edition, very considerably enlarged. *.\^_°r *|s"&t^."''.tinie it has been received work will receive its due appreciation at the as the best text book on the law of mortgages, and it has recently received the honours of a second edition. We have never been niggards towards Mr.Fisher's very laborious, learnedand useful treatise, and we still see no reason to retract those commendations or to leduce their measure. His book thoroughly deserves the character it has won of being the only good and complete repertory we have of the law of mortgages^ and other securities upon pro- perty.'*— Zatc Magazine. " The second edition of this book, comprised in two volumes of royal octavo, has little beyond its paternity to identify it with the original volume which appeared in 1856. If we speak of the author's first essay as merely tentative and meagre and partial, it is only to draw particular attention to the very complete arrangement and copious detail of the edition , now before the public ing."— Zaw Tirrm. and we doubt not that the excellence of the hands of the profession. A word in conclusion is due to the clearness and simplicity ^^hich pervades Mr. Fisher's writing. If his language is too often bold and devoid of grace it is never obscure, and we think that the absence of attractive composition will not in these days be accounted a demerit in a treatise designed solely for professional purposes, which pos- sesses the essential qualities of accurate learn- ing and lucid arrangement." — Law Journal. "The labour bestowed upon it by Mr, Fisher will be best understood by this fact. The mere list of cases cited in the text fills forty- three pages in double columns, and the list of statutes and orders cited occupies fifteen pages. We conclude by commending this work equally to the practitioner and the stu- dent; it will he invaluable to the former for reference, to the latter for reading and digest- Coote's Admiralty Practice. — Second Edition. 8vo., 16s. cloth. THE PRACTICE of the HIGH COURT of ADMIRALTY of ENGLAND : also the Practice of the Judicial Committee of Her Majesty's Most Honorable Privy Council in Admiralty Appeals, with Forms and Bills of Costs. By Henry Charles Coote, F.S.A., one of the Ex- aminers of the High Court of Admiralty, Author of ''The Practice of the Court of Probate," &c. Second Edition, almost entirely re-written, with a Supplement giving the County Courts Jurisdiction and Practice in Admiralty^ the Act of 1868, Rules, Orders, &c. The Supplement containing tJie County Court Practice in Admiralty is complete in itself and may he had separately , 2s. sewed. •** This \Dork contaim every Common Form in use by the Practitioner in Admiralty^ as well as every description of BUI of Costs in that Court, a feature possessed by no other work on the Practice in Admiralty. "Mr. Coote, being an Examiner of the Court, may be considered as an authoritative exponent of the points of which he treats. His treatise is, substantially considered, every- thing that can be desired to the practitioner." — Law Magazine. "The book before us Is a serond and en- larged edition of a work on the Practice of the Admiralty Court, written by the author some ten years ago. It ia, however, a great im- provement on its predecessor, being much fuller and more systematically arranged, and containing greater facilities for reference. The first part of the book is a treatise on the practice of the Court, which appears to us to he very carefully done, and to go thoroughly into the subject. The second part is a similar treatise on the practice of the Judicial Com- mittee of the Privy Council in Admiralty matters, written on the same system as the former part. The appendix contains a large number of common forms and precedents of pleadings used in the Court of Admiralty, together with bills of costs. Altogether Mr. Coote has done his work very carefully and completely, and we think his labours will be duly appreciated by Admiralty practitioners." — Solicitors' Journal. *' The first edition of this excellent work was produced for the purpose of illustrating the practice of the High Court of Admifalty, Just then subordinated to the ' Rules of 1859' drawn e on Boundaries and Fences aud Rights to the Seashore, and we are not sur- prised to ^nd that a second edition of his book has been called for. The present edition con. tains much new matter. The chapter especially which treats on rights of property on the seashore, has been greatly extended. Ad- ditions have been' also maoe to the <;hapters relating to the fencing of ih^ property of min^ owners and railway companies. All the CRses which have been decided since the work first appeared have been introduced in their proper Elates'. Thus it will be seen this new edition as a considerably enhanced valne,"-r^/ic«OT-*' Journal. Ortolan's Ron^an Law, translated by Prichard & Nasmith. 8vo., 285. cloth. THE HISTORY of ROMAN LAW, from the Text of Ortolan's Histoire de la Legislation Romaine et Generalisation du Droit (Edition of 1870). Translated, with the Author's permission, and Supplemented by a Chrononietrical Chart of Roman History. By IltudxisT. Prichard, Esq., F.S.S,, and David Nasmith, LL.B., Barristers at Law. •* We know of no work, which, in our opinion, exhibits so perfect a model of what a text-book ought to be. Uf the translation before us, it is enough to say. that it is a laithful representation of the original." — Law Magazine. " This translation, from its great merit, de- serves a warm reception from all who desire to be acquainted with the history and elements of Roman law, ur have its interests as a necessary part of sound legal education at heart, ^ith re- gard to that great work it is enough to say, that English writers have been continually in the habit or doing piecemeal what Messrs. Prichard and N asmith have done wholesale. Hitherto we have had but gold-dust from the mine; now we are fortunate inobtaininganugget. Mr. Nasmith is already known as the designer of a chart of the history of England, which has been generally approved, and bids fairly for extensive adoption.*' —Law Journal. " We are extremely glad to welcome the ap^ pearance of a translation of any of the works of M. Ortolan, and the history aud generalization of Koman taw, which are now presented lo as in English, are perhaps the most useful books that rould be ofitered at the present time to stu- dents of the Roman law. The utility of Homao law, as an instrument of Ic^al education, is now generally admitted. The Lnglish of the book is unusually free from foreign idioms which sooften disfigure translations. The book itself we strongly recommend lo all who are interested in Romau law, jurisprudence or history, and who are not sufficiently familiar with French, to be able to read the original with ease." — Solicitors^ Journal, Tomkins' Institutes of Roman Law. Part I. royal 8vo. (to be completed in Three Parts) 12s. cloth. . THE INSTITUTES OF THE ROMAN LAW. Part T. The Sources of tlie Roman Law and its external History to the decline of the Eastern and Western Empires. By Frederick J. Tomkin^, M.A., D.C.L., Barrister-at-Law, of Lincoln's Inn. " This work promises to be an important and valuable contribution to the study oi^the Komaa La.v/ ."'— Law Magazine. *'0f all the works on the Romnn T.aw we believe this will be the best suited to law stu- dents. We welcome the book of Mr, Tom- kins. It is calculated to promote the study of J<.oman Law j and both at the Lmiversities undin the Inns of Court it is a work which may safely and beneficially be employed as a text book.**— Law Times, " This work is pronounced by its author to be .strictly elementary. But in regard to the labour bestowed, the research exercised, and the ma- terials brought together, it seems to deserve a more ambitious title than that of an elementary treatise. The chapter on legal instruction, de- tailing the systems of legal education pursued in the various epochs ot Rome, reflects great credit on the author, and so far as we know is purely original.** — Lazp Journal. ** We know of no other book in which anything like the same amount of information can be ac- 'quired with the same ease. If the second part is as well executed as the first and bears adue proportion to it, we think the work bids fair to become the standard text book for English students." — Solicitors* Journal. " The study of this volume is necessary to all who wish to he properly acquainted with the history and literature of the Koman law," — Irish LazB Times, " Mr. Tomkins has produced a book that was " long needed.— XaBf Esamina'ioh Repcrcer ®=- MESSRS. BUTTERWORTH, 7, FLEET STREET, E.C. U; Saunders' Law of Negligence. 1 vol., post 8vo., 9s. clotli. A TREATISE on the LAW applicable to NEGLIGENCE. By Thomas W, Saunders, ,Esq., Barrister at Law, Recorder of Bath, "The book is admirable; while small in *' Asa work of reference the book will be very bulk, it contains evefirthing that is necessary, welcome in the office of the solicitor or in the and its arrangement is sucli that one can readily refei to it. Amongst those who have done good' service, Mr. Saunders will find a place." — Laza Magazine. " In the useful little volume now before us lie has gatliered the whole law of negligence. All his works are distinguislied by painstaking and accuracy. This one is no exception ; and the subject, which is of very extensive interest, will insure for it a cordial welcome from tlie profession."' — Lnw Times. "The references to the cases are given much more fully, and on a more rational system than is common witli text book writers. He has a good index; he lias produced a^ work wliich will facilitate reference to tlie authori- ties,"— ^o/iciVor*' Journal, > chambers of the barrister." — Morning Advertiser^ " A short and clear treatise like the present' on the law relating to the subject ouglit to be welcomed. It is a moderate size volume, and mahes references to all the authorities on the question easy." — Standard. *' It is a great advantage to the legal pro- fession to find all the law of negligence col- lected. and arranged in a manual of reasonable size. Such is Mr. Saunders' book." — Public Opinion. " A serviceable and seasonaMe treatise o» . the law of negligence, by Thomas W. Saundeis, Esq., Recorder of Bath." — Telegraph. " A careful treatise on a branch of law which is daily act^uiring importance. The mauual' before us is a useful treatise," — Echo, Ingram's Law of Compensation.— Snd Edit, by Elmes. Post 8vo., 12s, clorh, COMPENSATION to LAND and HOUSE OWNERS: being a Treatise on the Law of the Compensation for Interests in Lands, &c. payable by Railway and other Public Companies ; with an Appendix of Forms and Statutes. By Thomas Dunbar Ingram, of Lincoln's Inn, Esq., Barrister at Law. Second Edition. By J, J. Elmes, of the Inner Temple, Esq,, Barrister at Law. " We say at once that it is a work of great merit. It i^ a concise, clear and complete ex- position of the law of compensation applicable to the owners of real property and raiUiay and other companies."^irt» Magazine. " Whether for companies taking land or hold- ing it, Mr. Ingram^s volume wilt be a welcome guide. With this in his liand the legal adviser of a company, or of an owner and occupier whose property Is taken, and who demands compen- satiou for it, cannot fail to perform his duty rightly," — Law Timet, ** 'i'his work appears to be carefully prepared as regards its matter. Tiiis edition is a third Inr^er than the fiist'; it contains twice as many cases, and an enlarged index. It was much called for, and doubtless will be found very useful' tn the prHCtilioner." — Lata Magazine, second notice. Cutler's Law of Naturalization. 12mo., 3s. 6d. cloth, THE LAW of NATURALIZATION; as Amended by the Acts of 1870. By John Cutler, B.A., of Lincoln's Inn, Barrister at Law, Editor of " Powell's Law of Evidence," &c. "Theauthor'spositiouas Professorof English foreigners resident in this country.*' — Public Law and Jurisprudence is a guarantee of hi? legal competence, whilst his literary abilities have enabled him to clolhehis legal kiiowled<4e in language which laymen can understand with- out being misled by it." — John Bull. ''Mr. Cutler, in the work before us, lucidly explains the state of the law previous to the recent statute, and shows the alterations pro- duced by it, so that a. careful perusal of this book will enable the reader fully to comprehend the pirfsent state of the law upon this most im- portant subject." — Justice of the Peace. '* This little work will be found of use to our countrymen resident abroad^ as well as to Opinioii. " Tlie book is a model of what a treatise of its kind should be." — Sunday Times. " A very couvenient hand-book to the law of naturalization, as amended by the Acts of 1870." — JVeekly Times. "To anyone not having much previous ac- quaintance with the subject, who wishes for a general sketch of the law affecting aliens, as it was, and as it is now, this book will be useful." — Solicitors' Journal, ** It has been carefully compiled, and the authorities referred to are accurately cited."— Pall Mall Gazette, O- ©- 12 LAW WOBKS PUBLISHED BY Brabrook's Co-operative and Provident Societies. 12nia., 6s. cloth. THE LAW relating to INDUSTRIAL and PROVIDENT SOCIETIES, including the "Winding-up Clauses, "with a Practical Intro- duction, Notes, and Model Rules, to which are added the Law of Prance on the same subject, and Remarks on Trades Unions, By Edward W. Brabrook, F.S.A., of Lincoln's Inn, Esq., Barrister at Law, Assistant Registrar of Friendly Societies in England. ** It may be usefully consulted by practitioners desirous of learning something more upon the subject than is to be found in works on partner- ship and joint stock compaDies. The oook is thoughtfully written, and we recommend it to those who desire to learn something practical about the work which these societies are meant to do and the way in which it is to be drfne," — St//icitors* Journal. '* Mr. Brabrook's little work on these societies is opportune, and the statistics and information contained in it are valuable and interesting. 'ihere is a chapter devoted to practical advice. in which are contained many valuable and im- portant hints." — Laa Magazine. " Mr. Brabrook brings not merely official know- ledge of bis legal position as the barrister recently appointed to assist Mr. Tidd Pratt, Registrar of Friendly Societies in England, but the devotion of many years to a practical study of our in- dustrial and provident institutions." — Pott " The author speaks with practical experience and amhonty. "—Observer. " The clear exposition made by Mr. Brabrook in this volume supplies all the requisite informa- tion, and persons interested in the subject will do well to consult its pag&i."— News of the World. Rouse's Conveyancer. — 3rd Ed. with Supplement to 1871. Two vols. 8vo., 30s. cloth. The PRACTICAL CONVEYANCER, giving, in a mode com- bining facility of reference with general utility, upwards of Four Hundred Precedents of Conveyances, Mortgages and Leases, Settlements, and Mis- cellaneous Forms, with (not in previous editions) the Law and numerous Outline Forms and Clauses of Wills and Abstracts of Statutes affecting Real Property, Conveyancing Memoranda, &c. By Rolla Rouse, Esq., of the Middle Temple, Barrister at Law, Author of "The Practical Man," &c. Third Edition, greatly enlarged. With a Supplement, giving Abstracts of the Statutory Provisions affecting the Practice in Conveyancing, to the end of 1870; and the requisite Alterations in Forms, with some new Forms; and including a full Abstract in numbered Clauses of the Stamp Act, 1870. The Supplement separately y price Is. Qd. sewed. "The best testofthe value of a book written reader a sort of bird's-eye view of each instru- professedly for practical men is the practical one of the number of editions through which it passes. The fact that this well-known work has now reached its third shows that it is con- sidered by those for whose convenience it was written to lulfil its purpose well." — Law Magasine. ** This is the third edition in ten years, a proof that practitioners have used and ap- proved the precedents collected by Mr. Rouse. In this edition, which is greatly enlarged, he has for the first time introduced Precedents of Wills, extending to no less than 116 pages. We can accord unmingled praise to the con- veyancing memoranda showing the practical effect of the various statutory provisions in the different parts of a deed. Ifthe two preceding . editions have been bo well received, the wel- come given to this one by the profession will be heartier still." — Law Times. ** So far as a careful perusal of Mr. Rouse's look enables us to judge of its merits, we think that as a collection of precedents of general , utility in cases of common occurrence it will be found satisfactorily to stand the application of the test. The draftsman will find in the Practical Conveyancer precedents appropriate to all instruments of common occurrence, and the collection appears to be especially well supplied with those which relate to copyhold estates. In order to avoid useless repetition and also to make the precedents as simple as possible, Mr. Rouse has sketched out a num- ber of outline drafts so as to present to the ment and show him its form at a glance. Each paragraph in these outline forms refers, by distinguishing letters and numbers, to the clauses in full required to be inserted in the respective parts of the instrument, and which are given in a subsequent part of the work, and thus every precedent in outline is made of itself an index to the clauses which are neces- sary to complete the draft. In order still further to simplify\the arrangement of the work, the author has adopted a plan (which seems to us fully to answer its purpose) of giving the variations which may occur in any Instrument according to the natural order of its different parts." — Law JoumcU. "That the work has found favor is proved by the fact of our now having to review a third edition. This method of skeleton precedents appears to us to be attended with important advantages. To clerks and other young hands a course of conveyancing under Mr. Rouse's auspices is, we think, calculated to prove very instructive. To the solicitor, es- pecially the countty practitioner, who has often to set his clerks to work upon drafts of no p'articular difficulty to the experienced practitioner, but upon which they the said clerks are not to be quite trusted alone, we think to such gentlemen Mr. Rouse's collec- tion of Precedents is calculated to prove ex- tremely serviceable. We repeat, in conclusion, that solicitors, especially those practising in the country, will find this a uselul work," — Solicitors' Journal. O" MESSRS. BUTTERWORTH, 7, FLEET STREET, E. C. 13 Dixon's Law of Partnership. 1 vol. 8vo., 22*. cloth. A TREATISE on the LAW of PARTNERSHIP. By Joseph Dixon, of Lincoln's Inn, Esq., Barrister at Law. Editor of " Lush's Common Law Practice." "It is with considerable gratification that we find the subject treated by a writer of Mr. Dixon's reputation for learning, accuracy and painstaking. Mr. Lindley's view of the sab- ject is that of a philosophical lawyer, Mr. Dixon's is purely "and exclusively practical from beginning to end. We imagine that very few questions are likely to come before the practitioner which Mr. Dixon's book will not be found to solve. Having alreadypassed our opinion on the way in which the work is car- ried out, -we have only to add that the value of the book is very materially increased by an excellent marginal summary, and a very co- pious index." — L'aio Magazine and Review. " Mr. Dixon has done his work well. The book is carefully and usefully prepared," — Solicitors' Journal. " Mr. Dixon enters into all the conditions of partnerships at common law, and defines the rights of partners among themselves ; . the rights of the partnership against third per- sons ; the rights of third persons against the partnership; and the rights and liabilities of individuals, not actually partners, but liable to be treated by third persons as partners." — The Times. " We heartily recommend to practitioners and students Mr. Dixon's treatise as the best exposition of the law we have read, for -the arrangement is not only artistic, but concise- nesshas been studied without sacrifice of clear- ness. He sets forth the principles upon which the law is based as well as the cases by which its application is shown. Hence it is somethtiig more than a digest, which too many law hooks are not: it is really an essay." — Law Times. " H-e has evidently bestowed upon this book the 'same conscientious labour and painstaking industry for which we had to compliment him some months since when reviewing his edition of Lush's • Practice of the Superior Courts of Law/ and, as a re- sult, he has produced a clearly written and well arranged manual upon one of the most impor- tant branches of our mercantile .law." — Law Journal, " The matter is well arranged and the work is carefully executed." — Athenmum. Mr. Justice Lush's Common Law Practice. — Third Edition by Dixon. 2 vols. 8vo., 46*. cloth. * LUSH'S PRACTICE of the SUPERIOR COURTS of COMMON LAW at WESTMINSTER, in Actions and Proceedings over which thej^ have a common Jurisdiction: with Introductory Treatises re- specting Parties to Actions; Attornies and Town AgentsV their Qualifica- tions, Rights, Duties, Privileges and Disabilities ; the Mode of Suing, whether in Person or by Attorney in Forrai Pauperis, &c. &c. &c. ; and an Appendix, containing the authorized Tables of Costs- and Fees, Forms of Proceedings and Writs of Execution. Third Edition. By Joseph Dixon, of Lincoln's Inn, Esq., Barrister at Law. "This is an excellent edition of an excellent siderable advantage to the author, it largely increased the number of his clients. Wht^n new editions were called for, Mr. Lush was too occupied wttli briefs to find time for tlie pieparatioD of books, and lieuce the associutiou of his name with that of Mr. Dixon as editor, and by wlioni the new edition has been piu- duced. Tlje index is very copiousandcompletf . Under Mr. Dixon's care Lush's Pnictice will not merely maintain, it will largely extend its, reputation." — Law Times. "The profession ^annot but welcome with the greatest cordiality and pleasure a third edition of their old and much valued frieud ' Lush's Practice of the Superior Courts of Law.* Mr. Dixon, in preparing this edition, has gone back to the original' work of Mr. Justice Lush, and, as Far as the legislutive changes and decisions of the last Ev/euty-five years would allow, reproduced it. This adds greatly to the value of this edition, and at tlie same time speaks volumes for Mr. Dixon'd conscientious labour," — Last Journal, ^ork. He has effected a most successful ' restoration.' Altogether, both in what he hds omitted and what he has added, Mr. Dixon has been guided by sound discretion. We trust that the great and conscientious labours he has un- dergone will be rewarded. He has striven to make his work 'thorough,' and because he lias done so we take pleasuie in heartily recom- mending it to every member of both branches of the profession." — Solicitors'' JournaL " Lush's Practice is whatTidd's Practice was in our days of clerkship, and what Archbold's Practice was in our early professional days — the practice in general use, and the received authority on the subject. It was written by Mr. Lush when he was only a junior rising into fortune and fame. His practical know- ledge, his clearness and industry, were even then acknowledged, and his name secured for his work an immediate popularity, which ex- perience has confirmed and evtended. But the work was, in its turn, productive of con- 0- 14 LAW WORKS PUBLISHED BY Brown on the Law of Fixtures. 8vo., 35, 6d. cloth. THE RULE of the LAW of FIXTURES. By Archibald Brown, Esq., of the Middle Temple, Barrister-at-Law. "We had occasion to notice this treatise subject, and which are discussed or referred whilst it was appearing in the Law Magazine, to by the author."— iaw Journal. and the favourable opinion we then formed is " Simple and clear in language and in style, confirmed by a perusal of the book, which is it is none the less logical and supremely furnished with a table of cases bearing on the technical. We very heartily and honestly com- mend this volume." — Mechanic^ Magazine. Clifford and Stephens's Practice of Referees Court, 1871. Vol. I. and Vol. IL Part I., royal 8vo., 385. cloth. THE PRACTICE of the COURT of REFEREES on PRI- VATE BILLS in PARLIAMENT, with Reports of Cases as to the locus standi of Petitioners during the Sessions 1867-8-9 and 70. By Fbederick Clifford and Pembroke S. Stephens, Barristers-at-Law. "The authors point out in their preface that work will prove extremely serviceable."— none of the decisions of IS67 or later years are Solicitors' Journal. included in the previous works on the subject. "The reports, forming the nlost important They are accordingly reported in the work part of the volume, are given with fulness and before us, arranged in six groups. The his- accuracy, so lar as we can judge, and are of tory and practice of the subject are detailed themselves a sufficient recommendation to the tersely and accurately, and in a very intelli- volume." — Law Journal, gib le manner, in the- treatise. To counsel or "CliflFord and Stephens, the authority now agents engaged in parliamentary practice the universally quoted and relied on in this (Refereesj-Court," — Daily Sews, \,Qiia. 11. Part I., containing the Cases decided during the Session 1870, may he had separately, 10s. sewed, Starkie's Law of Slander and Libel.— 3rd Edition. One thick vol. medium Svo., 42^. cloth. STARKIE'S TREATISE on the LAW of SLANDER and LIBEL; including MALICIOUS PROSECUTIONS, CONTEMPTS of COURT, &c. ; also the Pleading and Evidence, Civil and Criminal, with Forms and Precedents. Third Edition. By H. C. Folkard, Barrister-at- Law. " No one will fail to see that there were as far as we have been able to examine, the ample reasons for a new ediLion of this valu- ' modern crises, down to the very latest, and to able work ; and upon reference to this edition the most obscure, have all heen collected, and it will he found that Mr. Folkard has performed have, on the whole, beea accurately sec out. his task carefully Hiid well. Icis well that such The profession may we tlimk be pretty cou- a treatise should have been re-edited, and it ts fidenc that whatever has been decided upon the well that It should have been edited by so law of libel will be found there." — Solicitott* Ciireful and paiustakiag a man as Mr. Folkard." Journai. —Lam Magatine. " It was requisite that the profession should " Thirty-nine years have gone by and now be supplied with a new edition of this staDdard Mr. Folknrd lias brought out a third edition work upou the subject, which should bring and certainly the first glance of tlie new book down the law to the most recent period. It gives the impression of pains uiispared. In would be difficult to fiud any part of his sub- point of bulk it contain^ more than twice as ject which Mr. Folkard has noi fully investi- much matter as the edition of 1830. With the gatedj and the result is a valuable addition to present volume before them^ the law othcers the lawyer's library which for many years lias of the Clown, and lawyers generally, will be been mucli needed." — Justice of ike Peace, saved an infinite amount of labour iu search of " This edition is of mucli greuter value than precedents. No one can say that Mr. Folkard either of the two which preceded iL la coii- has failed in the full discharge of bis onerous elusion we may do that which is now scarcely duty, and we are sure that lie will earn, as he necessary, rrcommeod Mr. Folkard's work to uili obtiiin, the gratitude of the profession." — the profession and the public. It is, as uow Law Journal. edited, very valuable,**— Xau Times, " It has been most laboriously executed, and. -ids s>- MESSRS. BUTTERWORTH, 7, FLEET STREET, E.G. 15 Clark's Digest of House of Lords Cases. Royal 8vo., 31s. 6d. cloth. f ^t^^^^'^^^ INDEX to all the REPORTS in the HOUSE ot LOKDS from the commencement of the Series by Dow, in 1814, to the end ot the Eleven Volumes of House of Lords Cases, with references to more recent Decisions. By Charles Clahk, of the Middle Temple, Esq., Jiarnster at Law, Reporter by Appointment to the House of Lords. "The decisions of the Supreme tribunal 01 this country, however authoritative in themselves, were not, until of late years, at all familiar to the great body of the legal pro- fession ; the early reports of them being in the hands of but few persons. In that tribunal, more than in any olher, questions can be con- sidered, as they have heen, upon purely legal piinciples, freed from the letters and obstruc- tions of mere precedent. The acknowledged eminence of the noble and learned persons hy whom the decisions have been pronounced, gives them a value beyond their official autbo- ritativeness. It is hoped that this Digest will .have the elfect of making the profession at large familiarly acquainted with them."— Pre- fatory Notice. Barry's Practice of Conveyancing. 8vo., 185. cloth. A TREATISE on the PRACTICE of CONVEYANCING. By W. Whittaker Barry, Esq., of Lincoln's Inn, Barrister at Law, late Holder of the Studentship of the Inns of Court, and Author of ** A Treatise on the Statutory Jurisdiction of the Court of Chancery." Chap. 1. Abstracts of Title.— Chap. 2. Agreements.— -Chap, 3. Particulars and Conditions of Sale. — Chap. 4. Copyholds. — Chap. 5. Covenants Chap. 6. Creditors' Deeds and Arrange- ments.— Chap. 7, Preparation of Deeds— Chap. 8. On Evidence.— Chap. 9. Leases.— Chap. 10. Mortsages. — Chap. tl. Paitnership Deeds and Arrangements. — Chap. 12. Sales and Pur. chases.— Ch*p. 13. Settlements.— Chap. 14. Wills Chap. 13. The Land Registry Act, 25 & S6 Vict, c, 53.— Chap, 16. The Act for obtaining a Declaration of Title, 25 & 26 Vict. c. 67. — Index. « The author of this valuable treatise on con- veyancing hasmost wisely devoted a considerable l>art of his work to the practical ilhistraiion of the workiog^ of the recent Statutes on Kegistraciou ot Tifle— and for this, as well as for other rea- sons, we feel bound to strongly recommend it to the practitioner as u ell as the student. The author has proved himself to be a master of the subject, for he not only gives a most valuable supply of practical suggestions, but criticises them with much ability, and we have no doubt that his criticism will meet with general ap- pioval,"— Ltfw Magatine, "The author introduces a woric which will be found a very acceptable addition to the law library, nnd to supply a want which we think has hitherto been telt. It contains, in a concise and.readable^ form, the law relating to almost every -point likely to arise in the ordinary every day practice of the conveyancer, with references to the various authorities and statutes tu the latest date, and may be described as a manual of practical conveyancinfj," — Law Journal. ** I his treatise supplies a want which has long heen fejt. There has been no treatise on the Practice of Conveyancing issued for a long time past that is adequate for the present requirements. Mr. Barry's n'ork is essentially what it professes to be, a treatise on the Practice of Conveyancing, in which the theoretical rules of real property law are referred to only for the purpose of eluci- dating the practice. Mr. Batry appears to have a very accurate insight into the practice in every department of our real property system. Although we cannot boast, like Duval* of having ever read abstracts of title with pleasure, we have certainly read Mr. Barry's chapter on abstracts and nu- merous other parts of his work with very con- siderable satisfaction on acconnt of the learning, great familiarity with practice, and power of ex- position of its author, 'ihe treatise, although capable of compression, is the production of a per- son 0/ great merit and still greater promise." — Solicitors' Jovrnal. *' The Author's design was to do for the prac- tiee of conveyancing what Mr. Joshua Williams has done for its principles, to describe it simply, clearly and succinctly, recollecting that he was only laying the foundation and not crowning the edince. A work the substance of which is so well known to, our readers, ne^ds no recorn- Diendatio'u from us, for ^its merits are patent to all, from personal actiuaintance with them. The information that the treatise so much admired may now be had in the more convenient form of a book, will suffice of itself to secure a lar^e and eager demand for it." — Law Times, * The work is clearly aud agreeably written, and ably elucidates the subject in hand."— Juj- tice of the Peace. , " The work is the most important and, best trea- tise on conveyancing' that now exists, and the stu- dent can have no better authority than Mr. Barry to get himself well up in conveyancing. >J or can the legal practitioner, and especially country sol i- citors, find a safer book of reference in practice than Mr. Barry's very valuable treatise. —A'ewj of the World. '* We must content ourselves with the state- ment that the present is a'work of very grealt ability. There is no modern work which deals with precisely the same subject, and we have no doubt whatever that this will prove a book of very great value, both to the practitioner and to the student-at-law,"— jiJ/AewiEHm. '-» c- 16 LAW WORKS PUBLISHED BY -<5! Hunter's Suit in Equity.— Fifth Edition. Post 8vo., lOs. 6d. cloth. AN ELEMENTARY VIEW of the PROCEEDINGS in a SUIT in EQUITY. With an Appendix of Forms. By Sylvester J. Hunter, B.A., of Lincoln's Inn, Barrister at Law. Fifth Edition. By G. W. Lawrance, M.A., of Lincoln's Inn, Barrister at Law. ' ' Hunter's Suit in Equity ' is an excellent us, for its standard merit is too well known to 1)ook for students. It is really an indispen- ■ sable for the chancery part of the lawyer's education. It is a great excellence of this work, that while making everything clear and giving substantially sufficient Information , its writers have been able to strike the happy mean between too great compression and em- barrassing exuberance of detail," — Solicitor^ Journal. " We presume that the continued demand for a volume of so essential utility to students of equity, rather than the necessary incorpo- ration of any new matter, has occasioned the publication of a new edition. The alterations and additions to chancery practice and proce- dure which have been made during the last three years by statute and by general orders of the court are embodied in their proper places in the present edition. In other respects we need pass no encomiums on the work before require commendation." — Law Journal. " Changes have compelled the recasting of a considerable portion of Mr. Hunter's excellent outline of the proceedings in a suit in equity, which has become a text-book with the law student. This work has been well dune by Mr. Lawrance, who has strictly preserved the scheme of the original sketch, while adapting it to the various changes that have been made. All former editions must be at once exchanged for this one." — Law Times. *' As an excellent introduction to the study of chancery practice the book has established its position, and we think the editor has done wisely in merely introducing such amend- ments as the alteration in the law by statutes and orders requires, and abstaining from any attempt to make it a manual of practice," — Law Magazijie. Lewis s Introduction to Equity Drafting. Post 8vo., I2s. cloth. PRINCIPLES of EQUITY DRAFTING; with an Appendix of Fprnis. By Hubert Lewis, B.A., of the Middle Temple, Barrister at Law ; Author of " Principles of Conveyancing," &c. *»* This Work, intended to explain the general principles of Equity Drafting, as well as to exempUly the Pleadings of the Court of Chancery, will, it is hoped, be useful to lawyers resorting to the If^ew Equity Jwisdiction of the County Courts. ' V'e have little doubt that this work will soon any title, be retained in the new jurisdiction,— gain a favorable place in the estimation of the profession. It is written in a olear attractive style, and is plainly the result of much thoughtful and conscientious labour."— Xa^j; Magazine and Review. " Mr. Lewis's work is likely to have a much wider circle of readers than he could have anticipated when he commenced it, for almost every page will be applicable to County Court Practice, should the bill, in any shape or under without it we fear that equity in. the County Courts will be a mass of uncertainty, — with it every practitioner must learn the art of equity drafting, and he will find no better teacher than Mr. Lewis " — Law Times. " This will, we think, be found a very useful work, not only to students for the bar and solicitors practising in the County Courts, as anticipated by the author, but also to the equity draftsman." — Law Jmirnal. Lewis s Introduction to Conveyancing. 8vo., 18s. cloth. PRINCIPLES of CONVEYANCING explained and illus- trated by Concise Precedents ; with an Appendix on the effect of the Trans- fer of Land Act in modifying and shortening Conveyances. By Hdbert Lewis, B.A., late Scholar of Emmanuel College, Cambridge, of the Middle Temple, Barrister at Law. I ' The preface' arrested our attention, and the examination we have made of the whole treatise hcis given us (what may be called a new sensation) pleasure in the perusal of a work on Convey- nncingr. We have, indeed, read it with pleasure and profit, and we may say at once that M r. Lewis is entitled to the credit of having produced a very useful, and, at the same time, original work. This will appear from a mere outline of his plan, which is very ably worked out. The manner in which his dissertations elucidate his subject is clear and iiractical, and his expositions, with the help, of his precedents, have, the best of all aualities in such a treatise, being eminenUy ju- icious and substantial. Mr. Lewis's work is conceived in the right spirit. Although a learned and goodly volume, it may yet, with perfect Eropriety^ be called a 'handy book.* It is eaides a courageous attempt at legal improve- ment; and it is, perhaps, by works of such a character that law reform niay be best accom- plished." — Law Magazine and Review, " It was still felt that a work explanatory and illustrative of conveyancingprecedents remained a desideratum. ■ Mr. Lewis proposes to supply this want in the work now before us. The book will be of the greatest use to those who have some an- tecedent knowledge of real property law, but who have not had mucQ experience iutne preparation of conveyances. * How to do it' mitrht well be the motto of the author, and certainly no ordi- nary lawyer can peruse Mr. Hubert Lewis's book without making himself much more competent to prepare and understand conveyancing than he was before. On the whole we consider that the work is deserving of high praise, both for design and execution, it is wholly free from the vice of hook making, and indicates considerable re- flection and learning. Mr. Lewis has, at all events, succeeded in producing a work to meet an acknowledged want, and we have no doubt he will find manv grateful readers amongst more advanced, not less than among younger, students. In an appendix, devoted to the Land Transfer Act of last session, there are some useful and novel criticisms on its provisious."^&/ici(orj' Jottrnai, m^i < ^ . _— MESSRS. BUTTERWORTH, 7, FLEET STREET, E.G. 17, Kerr's Action at Law. — Third Edition. - 12mo., 13s. cloth. AN ACTION AT LAW: being an Outline of the Jurisdiction of the Superior Courts of Common Law,' with an Elementary View of the Proceedings in Actions therein. By Robert Malcolm Kerr, Barrister at Law ; now Judge of the SheriflF's Court of the City of London. Third Edition. ,,",^l'",e is considerable merit in both works that of Mr.John William Smith, and is therefore uonn William Smith s anil Malcolm Kerr's); but better adapted for those »ho desire'to obtain not tne second Clierrj has rather the advantage."— merely a general notion but also a practical ac- "'»*/* T^ , 1. , . «... Quaintance with Common Law Procedure." — Mr. Kerr shook is more full and detailed than Solicilors' Jourmtl, Tudor's Leading Cases on Eeal Property, &e.— 2nd Edit. One thick vol. royal 8vo., 42s. cloth. A SELECTION OF LEADING CASES on the LAW RELATING to REAL, PROPERTY, Conveyancing, and the Construc- tion of Wills and Deeds ; with Notes, By Owen Davies Tudor, Esq., of the Middle Temple, Barrister at Law. Author of '* A Selection of Lead- ing Cases in Equity," Second Edition, ^ The Second EJLtioa is now before us, and law itself applicable to the cases discussed by we are able to say that the same extensive liini. We cordially recommend the work to the koowledge and the same laborious industry as practitioner and the student alike, but espe- have been eKhibited by Mr. Tudor on former cially to the former." — •Solicitors* Journa/, occasions characterize this later production of , "Thisaudtheothervolumesof Mr. Tudorare his legal authorsliip ; and it is enough at this almost a law library in tlieraselves, and we are moiKeut to reiterate an opinion that Mr. Tudor satisfied that the student would learn more lias well jnaiutained the high legal reputation law from the careful reading of them than lie whiclihis standard works have achieved in alt would acquire from double the time given to countries wherethe English language is spuken» the elaborate treatises which learned professors and the decisions of our Courts are quoted." recommend the student to peruse, with entire — Lasp Magazine and Review. forgetfulness that time and brains are limited, " The work before us comprises a digest of and that to do what they advise would be the decisions which, if not exhaustive of all the work of a life. Smitli and Mr. Tudor will tu- principtes of our real property code, will at gather give them such a knowledge of law as least be found to leave nothing untouclied or they could not obtain from a whole library of unelaborated under the numerous legal doc- text books, and of law that will be useful every trines to which the cases severally relate. To day, instead of law that they will not want Mr. Tudoi's treatment of all these subjects, so tliree times in their lives. At this well the complicated and so varied, we accord our entire practising lawyer might beneficially refresh his commeDdation. There are no omissions of any memory by a draught, when a leisure hour will importantcasesrelative to the various branches permit him to study a leading case. Ho Iftw of the law comprised in the work, nor are there library should be without this most useful any omissions or defects in his statement of the book.^-rXazff Times. Benham's Student's Examination Guide. 12mo, 35. cloth. THE STUDENT'S GUIDE to the PRELIMINARY EXA- MINATION for ATTORNEYS and SOLICITORS, and also to the Oxford and Cambridge Local Examinations and the College of Preceptors ; to which are added numerous Suggestions and Examination Questions, selected from those asked at the Law Institution. By James Erle Benham, of King'^ College, London. " The book is artistically arranged. It will " Mr. Benham has produced a very useful become a useful guide and instructor not only manual. He gives many suggestions on all the to law students but to every student who is subjects of examination and full information preparing for a preliminary examination." — Laa thereon." — Laza Examination Reporter. Journal. " He has succeeded in producing a book " The book is written in a clear and agreeable which will doubtless prove useful. The sets style, and will no doubt be found useful by the of examination papers appear to be judiciously class of readers for whom it is intended." — selected and are tolerably full.*'— JmA Lau Lavs Magazine and Review, Timet* Tomkins and Jencken's Modem Roman Law. Svo., 14«. cloth. COMPENDIUM of the MODERN ROMAN LAW. Founded upon the Treatises of Puchta, Von Vangerow, Arndts, Franz Moehler and the Corpus Juris Civilis, By Frederick J. Tomkins, Esq., M. A., D.C.L., Author of the " Institutes of Roman Law," Translator of " Gains," &c., and Henry Diedmoh Jencken, Esq., Barristers at Law, of Lincoln's Inn. * Mr. Tomkins and Mr. Jencken could not from the care liestowed upon it by two cxpe- Iiave written such an excellent book as this if they had npt devoted many laborious days, probably years, to the study of Roman Law in its entirety, and to research into the laws of continental states, for the purpose of learning what principles of Roman Law are preserved in their jurisprudence." — Law Times. *■ To those who think with us that the study of the modern civil law has been too much neglected in the education of solicitors, the ad- mirable book whose title we have above an- nounced will be indeed invaluable." — Law Examination Journal. "They have -unquestionably given us a most valuable contribution on the literature of Roman Law, and one which, ought to rapidly work its way to public favor."— JVbr/A Britsh Mail. * * We cordially wish success to a book which rienced authors can scarcely fail, we should hope, to take a respectable place among the educational works on Roman Law, which seem likely to form a special feature among the legal publications of the present epoch." — Athenaeum. "A valuable contribution to a kind of litera- ture which English jurists are only now begin- ning to value at its true worth. Dr. Tomkins and his fellow- worker, Mr. H. D. Jencken, have bestowed much labour on their task." — Echo. ''Their work is well arranged and clearly written, and presents in an agreeable and read- able form the principles of the great system of Roman Civil Law. It is admirably adapted for the use of students, while the copious references which it contains to the writings of the great civilians upon whose works it is based render it a valuable text-book for the more advanced practitioner."— /mA Law Times, Latham's Law of Window Lights. Post 8vo., lOi. cloth. A TREATISE on the LAW of WINDOW LIGHTS. By Francis Law Latham, of the Inner Temple, Esq., Barrister at Law. the subject is quite exhaustively treated. To solicitors the volume will, we think, be par- ticularly serviceable. Armed with the work we have now reviewed, the practitioner will be in a fair way to cope successfully with the most exigent client who comes to consult him about his windows."— fioWciiora' Journal. " This subject has acquired a general com- mercial interest, and a clear concise work upon it is, at this time, very opportune. Mr. Latham's treatise on the Law of Window Lights appears to supply in a convenient form all the information which, in a general way, may be required. The text throughout is lucid and is well supported by precedents." — Building News. ** Mr. Latham has done well in providing a new treatise on the subject, and setting forth some of the more recent decisions of our courts. It is well arranged and clearly written. We recommend the book." — Builder, " This is not iherely a valuable addition to the law library of the practitioner, it is a book that every law student will read with prodt. It exhausts the subject of which it treats." — Law Times. " His arrangement is logical, and he dis- cusses fully each point of his subject. The work, in our opinion, is both perspicuous and able, and we cannot but compliment the author on it " — Law Journal. " A treatise on this subject was wanted, and Mr. Latham has succeeded in meeting that want." — A thencbum. ** Mr. Latham is evidently one of those authors who like to have a complete skeleton of their subject elaborated before putting pen to paper; and the consequence is, that this little work is one which we have much plear sure in recommending to the profession. The sequence of discussion is well ordered, and the author's plan well adhered to ; and although the text comprises less than 250 octavo pages, Tudor's Law of Charitable Trusts. — Second Edition. Post 8vo., 18s. cloth. THE LAW OF CHARITABLE TRUSTS; with the Statutes o the end of Session 1870, the Orders, Regulations and Instructions, issued pursuant thereto ; and a Selection of Schemes. By Owen Da vies TuDORi Esq., of the Middle Temple, Barrister-at-Law ; Author of " Leading Cases in Equity;" ** Real Property and Conveyancing;" &c. Second Edition. " No living writer is more capable than Mr. Tudor of producing such a work : his Leading Cases in Equity, and also on the Law of Ileal Property, have deservedly earned for him the highest reputation as a learned, careful and judicious text-writer- "We have only to, add that the index is very carefully. compiled." — Solicitors' Jourrfal. " Mr. Tudor's excellent little book on Cha- ritable Trusts. It is in all respects the text- book for the lawyer, as well as a hand-hook for reference by trustees and others engaged in the management of charities." — Law Times. "6 MESSRS. BUTTERWORTH, 7, FLEET STREET, E.G. 19 -O Gaius's Roman Law, by Tomkins and Lemon. Complete in 1 vol 8vo., 27s. cloth extra. {Dedicated hy permission to Lord Chancellor Hatlierley.) THE COMMENTARIES OF GAIUS ON THE ROMAN LAW : with an English Translation and Annotations. By Frederick J. Tomkins, Esq., M.A., D.C.L., and William George Lemon, Esq., LL.B. Barristers at Law, of Lincoln's Inn. "We congratulate the authors on the pro- duction of a work creditable alike in its in- ctption and its progress. The translation is on the whole satisfactor)' : the annotations are often valuable and compiled from trustworthy sources." — Law Journal. " They have done a good service to the study of Roman Law, and deserve the thanks of those who take an interest in legal literature." — Saticitara* Journal, '■ After a careful perusal of the present work, we feel bound to speak in the highest terms of the manner in which Mr. Tomkins and Mr. Lemon have executed their task. We have no hesitation in pronouncing the work to be a most valuable contribution to juristical learning, and we unhesitatingly recommend its careful perusal to all students of Roman Law." — Law Magazine. "The translation is carefully executed, and the annotations show extensive knowledge of the Roman Law." — AthencBum. "The book is in every respect one of the most valuable contributions, from an Eng- lish source, to our legal literature which the last half century has witnessed." — Edinburgh- Evening CouraTit. " The want of an edition of the Commen- taries^ of Gains for English students has now been supplied by Dr. Tomkins and Mr. Lemon in a manner which leaves nothing to be de- sired. The translation of the Latin text is excellent; and the notes, upon which tlie value of the work mainly depends, are full of the most ample learning upon the matter of the text." — Itisli Law Times. " This is the first time that the text of Gains has been translated into English, and it is remarkably well done by Messrs. Tomkins and Lemon in the part before us, who have also enriched the text by many valuable notes." — Law ExaminaUon Reporter, Phillimore's Commentaries on International Law, COMMENTARIES on INTERNATIONAL LAW. By the Right Hon. Sib Robert Phillimore, Knt., now Judge of the High Court of Admiralty of England. *** Vol, 1, second edition^ price 2-5i., Vol. 2*6econd edition^ price Vol. 3, price Z2s., Vol. 4, price 30a., may be Juid separately to complete sets, or the work may he had complete in fowr Vols., price cloth. Extract from Pamphlet on " Amei-ican Neutrality^' by George Bemis (Boston, U.S.). — "Sir Robert PhilUmore, the present Queen's Advocate, and author of the most comprehensive and systematic ' Commentary on International Law ' that England has produced." " The authority of this work is admittedly great, and the learning and ability displayed in it3 preparation have been recognized by writers on public law both on the Continent of Europe and' in the United States. With this necessarily imperfectsketch we must conclude - our notice or th|e first volume of a work which forms an important contribution to the litera- ture of public lav. The book is of great utility, and onewhich shouldfindaplace in the library of every civilian." — Law Magazine. '* We cordially welcome a new edition of vol. 1. It is a work that ought to be studied by every educated man, and which is of con- stant use to the public .writer and statesman. "We wish, indeed, that our public writers would read it more abundantly than they have done, as they would then avoid serious errors in dis- cussing foreign questions. Any general ciiti- cism of a book which has been received as a standard work would be superfluous ; but we may remark, that whilst Sir Robert strictly ad- heres to the canons of legal authorship, and never gives a statement without an authority or offers a conclusion which is not manifestly deducible from established facts or authorita- tive utterances,yetso lucidis his style, we had almost said so popular, so clear is the enunci- ation of principles, so graphic the historical portions, that the book may be read with plea- sure as well as profit. It will not be out of place to further remark, that the arrangement is excellent, the table 6f contents, the list of authorities are complete, and, therefore, these Commentaries are singularly handy for refer- ence. Altogether this work is a witness to the zeal, industry and ability of Sir R. Fhillimore. It will not only be read at home, but also in the United States, and it cannot fail to smooth the way for the thorough international understand- ing between England and America that the true men of both countries so ardently desire."— Law Jownal. ^ • jg 20 LAW WORKS PUBLISHED BY Christie's Crabb's Conveyancing. — Fifth Edit, by Shelford. Two vols, royal 8vo., 31. cloth. CRABB'S COMPLETE SERIES of PRECEDENTS in CONVEYANCING and of COMMON and COMMERCIAL FORMS in Alphabetical Order, adapted to the Present State of the Law and the Practice of Conveyancing ; with copious Prefaces, Observations and Notes on the several Deeds. By J. T. Christie, Esq., Barrister-at-Law. The Fifth Edition, with numerous Corrections and Additions, by Leonakd Shelford, Esq., of the Middle Temple, Barrister-at-Law. *** This Work, which embraces toth the Principles and Practice of Conveyancing, contains likewise every description of Instrvment wanted f&r Commercial Purposes. General Table of Heads of Prefaces and Forms. Abstracts. — Accounts. — Acknowledgments.— Acquittances.— Admittances. — Affidavits, Affir- mations or Declarations. — Agreements: to lelinquish Business: to Guarantee: for a Lease : before Marriage : for a Partition : between Principal and Agent : for the Sale and Purchase of Estates: for Sale of Copyhold Estates: for' Sale of Leaseholds: for Sale of an Advowson. — Annuity: secured on Copyholds.— Annuities : Assigments of. — ^Appoint- ments : of Guardians. — Apportionment. — Apprenticeship : to the Sea Service : to an Attorney: Assignment of. — Arbitration : Award.— Assignments : Bonds: Leases: Patents: Pews : Policies of Insurance : Reversionary Interests. — Attestations. — Attornments.^ Auctions : Particulars of Sale.— Bargains and Sales : of Timber. — Bills of Sale of Goods. —Bonds: Administration: Receiver pending Suit: Post Obit: Stamps on. — Certificates, — Composition: Conveyances in Trust for Creditors. — Conditions: of Sale. — Confirmations. — Consents. — Copartnership: Dissolutioi^ of Copartnership.— Covenants: Stamps on: for Production of Title Deeds. — Declarations. — Deeds : I. Nature of Deeds in General : II. Requisites of a Deed: III. Formal parts of Deeds: IV. Where a Deed is necessaTy or otherwise: V. Construction of Dee^: VI. Avoiding of Deeds: VII, Proof of Deeds: VIII. Admission of Parol Evidence as to Deeds: IX. Possession of Deeds : X. Stamp Duty on Deeds. — Defeasances. — Demises — Deputation. — Disclaimers. — Disentailing Deeds. — Distress : Notices of. — ^Dower. — Enfranchisements. — ExchangeSi — Feoffments. — Farther Charges. — Gifts. — Grants. — Grants of Way or Road. — Indemnities. — Leases : I. Nature of Leases in General : II. Requisites to a Lease : III. Parts of a Lease : IV. Incidents to a Lease: V. Stamps on Leases.— Letters of Credit. — Licences.— Mortgages : of Copyholds: of. Leaseholds: Transferor: Stamp Duty on,— Notes, Orders, Warrants, &c. — Notices: to Quit. — Partition. — Powers : of Attorney. — Presentation. — Purchase Deeds : Conveyance of Copyholds : Assignments of Leaseholds: Stamps on. — Recitals. — Releases or Conveyances : or Discharges. — Renunciations or Disclaimers. — Resignations. — Revocations. — Separation. — Settlements : Staitip Duty on.— Shipping : Bills of Lading : Bills of Sale : Bottomry and Respondentia Bonds : Charter Parties. — Surrenders. — Wills: 1. DeflniHon of Will and. Codicil : 2. To what Wills the Act 7 Will. 4 & 1 Vict. c. 26 does not apply: 3. What may be disposed of by Will : 4. Of the capacity of Persons to make Wills : 5. Who may or may not be Devisees; 6. Execution of Wills : 7. Publication of Wills : 8. Revocation of Wills : 9. Lapse of Devises and Bequests : 10. Piovisions and Clauses in Wills : II. Construction of Wills. From the Law Times. the experienced draftsman. Mr. Shelford has ** Thepreparationof itcouldnothavebeencon- proved nimself in this task to be not miworthy of fided to more able hands than those of Mr. Shel- "is forinerreputation. To those familiar with his ford, the veteran authority on real property law. other works it will beasufficientrecommendationi With the industry that distinguishes him he has of this." done ample justice to his task. In carefulness we ,_ . have. in him a second Crabb, in erudition Crabb's From ike Law Magazine and Review, superior ; and the result is a work of which the ** To this important part of his duty — theremo- original author would have been proud, could it delling and perfecting of the Forms— even with have appeared under his own auspices. It is not the examination which we have already been able a book to be quoted, nor indeed could its merits be to afford this work, we are able to affirm, that the exhibited by quotation. It is essentially abook ot learned editor has been eminently successful and practice, which can only be described in rude out- effected valuable improvements.'' line and dismissed with applause, and a recom- mendation of it to the notice of those for whose From the Law Chronicle. service it has been so laboriously compiled." " Itpossessesone distinctive feature in devoting more attention than usual in such works to forms From the Sohcitors Journal. of a commercial nature. We are satisfied from " The collection of precedentscontainedin these an examination of the present with the immediately two volumes are all that could be desired. They preceding edition that Mr. Shelford has very cou- are particularly well adapted for Solicitors, being siderably improved the character of the work, of a really practical character. They are more- both in the prefaces and in the forms. On the over free from the useless repetitions of common whole the two volumes of Crabb's Precedents, as forms that so much increase the bulk and expense edited by Mr. Leonard Shelford. will be found of some collectionsthat we could name.- We know extremely useful in a solicitor's office, presenting not of any collection of conveyancing precedents a large amount of real property learning, with that would make it so possible for a tyro to put verynumerousprecedents: indeed we know of no together a presentable draft at an exigency, or book so.iustly entitled tothe appellation of* handy' which are more handy in every respect, even for as the fifth edition of Mr, Crabb's Preped^uts." *&- MESSRS. BUTTERWORTH, 7, FLEET STREET, E. C. 21 Mosely's Articled Clerks' Hand^-Book. t2mo., 7s. cloth. A PRACTICAL HANDY-BOOK of ELEMENTARY LAW, desigtied for the use of .Articled Clerks, with a Course of Study and Hints on Reading for the Intermediate and Final Examinations. ' By M, S, Mosely, Solicitor, Clifford's Inn Prizeman, M. T. 1867. '* This useful little book is intended for the use " There are few who read this 'book with care or articicQ clerks durihtj the period nf their arti- who will not readily admit that on many intricate cles. Ifte style of this book is peculiar: itisan points of law their notions have become much exagjrerationof the style adopted by Mr. Haynes clearer than before their acq.uaintance with it. in his admirable uutlines of Equity.' The Jiothparisare well workedout, and will befound author seems to think the adoption of such a useful; but in the second division of each ohap- style the only way to make the study of the law ter the law student will find most valuable in- popular. and we are not prepared ao say he is formation, as there Mr. Mosely not only marks wrong. —Law Magazine atid Review. out the course of reading which he rccommeuds I he design of this Utile book is to combine for each year, but also carefully analyses the instruction, advice and amusement, if anything cont«nts of each book, and points oiit those amusing can be extracted from the routine of a chapters and subjects which it will be most ad- soiicitor 8 office and the studies of articled clerks. vgntageous for the student to toaster at the fiwt J he book will cenainly be found usefiil "by any reading, and those which he ought fio defer till art'cled clerk, for it contains much information a second perusal and a wider experience have which it is sometimes very troublesome to find, made him more competent to understand them, and the facetiousness of Mr.. Mosely's manner U'he style is remarkably good, and, considering will doubtless help to grease the course of a the suoject, free from technical expressions." — rough and uneasy subject."— Xaa? Journal. Irish Law. Times. Rouse's Copyhold Manual. — Third Edition. 12mo., 10s. Gd. cloth. THE COPYHOLD ENFRANCHISEMENT MANUAL, giving the Law, Practice and Forms in Enfranchisements at Common Law and under Statute, and in Commutations ; with the Values of Enfranchise- ments from the Lord's various Rights : the^ Principles of Calculation being clearly explained, and made practical by numerous Rules, Tables and Examples. Also all the Copyhold Acts, and several other Statutes and Notes. Third Edition. By Rolla Rouse, Esq., of the Middle TempIc; Barrister at Law, Author of ^' The Practical Conve5rancer," &c. - " This new edition follows the plan of its pre- world will greet with pleasure a new and im- decessor, adopting a fivefold division: — 1. The jiroved edition of his copyhold manual. The 4-aw. 2. 'I he Practice, with Practical Sngges- third edition of that work is before us. It is a tions to T.ords, Stewards and Copyholders. 3. work of great practical value, suitable to lawyers in all its Details, with Rules, Tables and Exam- mend this volume to thea)ractitioner.the steward pies. 4. Forms. 5. The Statutes, with > otes. Of and the copyholder."— Zam itfafl-azi/ie. ■ theseiWecanonly repeat what we have said before, " Mow, however, that copyhold tenures are that they exhaust the subject ; they give to the being frequently conv^erted irito freeholds, Mr. practitioner all the materials rf^quired by him to Rouse's treatise will doubtless be productive of conduct the enfranchisement of a copyhold, whe- very extensive benefit; for it seems to us to have ther voluntary or compulsory "—Law Times. been very carefully prepared, exceedingly well " When we consider what favor Mr, Rouse's composed and written, and to indicate much ex- Practical Man and Practical Conveyancer have perience in copyhold law on'the part of the found with the profession, we feel sure the legal author."— ,'S'o/ici (on' J§umal. Shelford's Succession, Probate and Legacy Duties. Second Edition. I2ino., 16s. cloth. THE LAW relating to the PROBATE, LEGACY and SUCCESSION DUTIES in ENGLAND, IRELAND and SCOTLAND, including aU the Statutes and the Decisions on those Subjects: with Forms and Official Regula);ions. By Leonard Shblfobd, Esq., of the' Middle Temple, Barrister-at-Law. The Second Edition, with many Alterations and Additions. ** The book is written' mainly for solicitors, subject nothing remains but to make known its Mr. Slielford has accordingly planned his work appearance to our- readt^rs. its merits have been with careful reijard to its practical utility and already tested by most nf them."— £aw Times. A!ti\y use."— SoSicitoT3^JoyTnai. ■ *' On the whole Mr. Shelford's book appears to "One of the most useful and popular of nis ua to be the best and mostcomplete workohthis productions, and being now the text book on tue extremely intricate subject."— ia» ijdagaiine. &- -® LAW WORKS PUBLISHED BY Davis's Law of Master and Servant. 12mo. 6s. cloth. THE MASTER AND SERVANT ACT, 1867 (30 & 31 Vict. c. 141), with an Introduction, copious Notes, Tables of Offences, and Forms of Proceedings, prepared expressly for this Work, By James E. Davis, Esq., Barrister at Law, Stipendiary Magistrate, Stoke-upon-Trent. *** Besides the Act and copious Notes^ Introduction, and a variety of Forms of Summons, Orders^ CojivicUons, Recognizances, &c., specially prepared for this work. Tables Ita/ve been framed classifying all the offences wiUiin the jurisdiction of Justices. Jt is hoped that this will be found useful, not only io Magistrates and their Clerks, but to the Legal Profession generally, for in consequence of the new Act not describing the offences, hut merely referring to a schedule of seventeen fqj'nier Acts, it is very difficult to say what cases are or are not within the purview of tfie new Act. The decisions of tfte Superior Courts, so far as they are applicable to the present law, are also given. Woolrych's Law of Sewers. — Third Edition. 8vo., 12s. clotir. A TREATISE of the LAW of SEWERS, including the DRAINAGE ACTS. By Humphry W. Woolrych, Seijeant at Law. Third Edition, with. considerable Additions and Alterations. '• Two editions of it have been speedily ex- no work filling the same place has been added hausted, and a third called for. The author to the literature of the Profession. Itisawork is an accepted authority on all subjects of this of no slight labour to digest and arrange this class." — Law Times. < mass of legislation : this task, however, Mr. " This is a third and greatly enlarged edition Serjeant Woolrych has undertaken, and an of a book which has already obtained an esta- examination of his book will, we think, con- blished reputation as th6 most complete dis- vince the most exacting that he has fully eussion of the subject adapted to modern succeeded. No one should attempt to meddle times. Since the treatise of Mr, Serjeant with the Law of Sewers without its help." — Callis in the early part of the 17th century, Solicitors' Journal, Grant's Law of Corporations in General. Royal 8vo., 26s. boards. A PRACTICAL TREATISE on the LAW of CORPORA- TIONS in GENERAL, as well, Aggregate as Sole; including Municipal Corporations ; Railway, Banking, Canal, and other Joint-Stock and Trading Bodies; Dean and Chapters; Universities; Colleges; Schools; Hospitals; with quasi Corporations aggregate, as Guardians of the Poor, Church- wardens, Churchwardens and Overseers, etc. ; and also Corporations sole, as Bishops, Deans, Canons, Archdeacons, Parsons, etc. By James Grant, Esq., of the Middle Temple, Barrister at Law. J. Chitty, jun's. Precedents in Pleading. — Third Edition. Complete in One Vol. Royal 8vo., 38s. cloth. J. CHITTY, Jun's. PRECEDENTS in PLEADING; with copious Notes on Practice, Pleading and Evidence. Third Edition, By the late Tompson Chitty, Esq.^ and by Leofrtc Temple, R. G. Wil- liams, and Charles JefperY, Esquires, Barristers at Law. (Part 2 may, for the present, be had separately, price 18s. cloth, to complete sets.) *' To enter into detailed criticism and praise of its usefulness, as heretofore, will be found not to this standard work would be uuite out of i)lace. be confined cothe chambers of the special pleader. Id the present instance the matter ha.s fallen but to be of a more extended character, i'o into competent hands, who have spared no pains. those who knew the work of old no recomoienda-- This valuable and useful wOrk is Urought down tion is wanted, to those younger members of the to the present time, altered in accordance with profession who have not that privilege we would the ca^es and statutes now in force. Great care suggest that they should at once make lis ac- hai been ctxpended by the competent editors, and quaintance."— iaw JOumaL -* Scriven's Law of Copyholds.— 5th Edit.-l)y Stalman. Abridged in 1 vol. royal 8vo., £1 : 10s. cloth. A TREATISE ON COPYHOLD, CUSTOMARY FREE- HOLD and ANCIENT DEMESNE TENURE, with the Jurisdiction of Courts Baron and Courts Leet. By John Schiven,, Serjeant at Law. Fifth Edition, containing references to Cases and Statutes to 1867. By Henry Stalman, of the Inner Temple, Esq., Barrister at Law. - ' ^o lawyer can see or hear the word 'copy- half a century been not only a standard work nolo without associating with it the name of but one of unimpeachable authority, and in its ocnven, whose boolt has been always esteemed pages the present peneration has learned ailthat not merely the best but the only one of any is K-uown of copyhold and customary tenures. worth. Until a commutation of the tenure for All that is necessary to say is, that in the pre- a fixed rent-charge, after the manner of a tithe sent edition of Scriveu on Copyholds Mr. Stal- commutation. is compelled by the legislature, man has omitted what it was useless to retain, this treatise will lose none of its usefulness to the and inserted what it was necessary to add, solicitors in the country.*'— X-aai Times. Until qopyholds have disappeared utterly, it is- It would be wholly superHuous to offer one at least certain that Scriven on Copyholds by word, of comment on the general body of the Stalman will hold undisputed sway in the pro- work. Scriven on Copyholds has for exactly fessiou,"— Xa&i Jburna/. Davis's Law of Eegistration and Elections. One small 12mo. vol., 15s. cloth. MANUAL OF THE LAW AND PRACTICE OF ELEC- TIONS AND REGISTRATION. Comprising all the Statutes, with Notes and Introduction, and a Supplement containing the Cases on Appeal down to 1869, the Rules relq,ting to Election Petitions, and a complete Index to the whole Work. By James Edward Davis, Esq., Barrister at Law, Author of " Manual of Practice and Evidence in the County Courts," &c. " A work, which, in our judgment, is the ban- order to obtain a fair mastery of the whole sub- diest and most tiseful of the manuals which the ject, wehave uo hesitation in nighly recommend- Keform Act of 1867 has brought into existence." inff this work."— -So/iceVor*' Journal. — Laa MagaziTie. " >Jo one comes forward with better credentials " We think this the best of the now numerous than Mr. Davis, and the book before us seems to works on this subject. It has a great advantage possess the qualities essential to a guide Co a in its arrangement over those which are merely discharge of their duties by the officials. The new editions of works published before the recent scheme of Mr. Davis's work is very simple.** — legislation. To read through consecutively, in Law Journal The Supplement may be had separately, price 3s. sewed. Browning's Divorce and Matrimonial Causes Practice. Post 8vo., 8s. cloth. THE PRACTICE and PROCEDURE of the COURT for DIVORCE and MATRIMONIAL CAUSES, including the Acts, Rules, Orders, copious Notes of Cases and Forms of Practical Proceedings, with Tables of Fees and Bills of Costs. By W. Ernst Browning, Esq.,'of the Inner Temple, Barrister-at-Law. Brandon's Law of Foreign Attachment. 8vo., 14*. cloth. A TREATISE upon the CUSTOMARY LAW of FOREIGN ATTACHMENT, and the PRACTICE of the MAYOR'S COURT of the CITY OF LONDON therein. With Forms of Procedure. By Wood- tHorpe Brandon, Esq., of the Middle Temple, Barrister-at-Law. 24 LAW WORKS PUBLISHED BY Mt. ©K^'fl Maqi^tevial anorltd* Oke's Magisterial Synopsis ; a Practical Guide for Magistrates, their Clerks, Attomies, and Constables; Summary Convictions and Indictable Offences, with then- Penalties, Punishments, Procedure, &c., being alphabetically and tabularly arranged : with a Copious Index, 7'enth Edition, muck enlarged. By George C. Oke, Chief Clerk to the Lord Mayor pf London, In 2 vols. 8vo. 685. cloth. " The tenth edition of this valuable compendium of magisterial law makes its appearance in two volumes, a great improvement for convenience of reference upon the single bulky volume of the former editions. The position which the work has gained and the growing demand for it are shown by the fact that a ninth edition was published so lately as 1366. In accordance with the suggestion made to Mr. Oke, the present edition has been prepared and issued immediately alter the fourth edition of its equally useful companion the Magisterial Formalist. The careful and conscientious treatment which Mr. Oke always bestows upon whatever he takes in hand, entitles him to full credit when he says that ' many titles have been enlarged, much new matter incerted, and a variety of minute improvements made in the references, upon all of which I have bestowed my personal attention and utmost care.'"— Law Magazim. 2. Oke's Magisterial Formulist ; being a Complete Col- lection of Forms and. Precedents for pmctical use in all Cases out of Quarter Sessions, and in Parochial Matters, by Magistrates, their Clerks, Attornies and Constables. By George C. Oke, < Author of " The Magisterial* Synopsis," &c. Fourth Edition, enlarged and improved. 8vo. 38*. cloth. " Tliiis work is too well known to need eulogy. It is in universal use in magistrates' courts ; it has been out of print for some time, and a new edition was urgently required. We believe that Mr. Oke purposely delayed it that it might be made contemporaneous, or nearly so, with the Synopsis. The contents are brought down to the end of last year, and consequently it in- cludes all the forms required by the new statutes and decisions of the six years that have elapsed since the publication of the third edition. It is a book that has been known so long, and so extensively, that no further description of it is needed now." — Law Times, 3. Oke's Handy Book of the Game and Fishery Laws; containing the whole Law as to Game, Licences and Certificates, Poaching Prevention, Trespass, Rabbits, Deer, Dogs, Birds and Poisoned Grain throughout the United Kingdom, and Private and Salmon Fisheries in Eng- land. Systematically arranged, with the Acts, Decisions, Notes, Forms, Suggestions, &c. By George C. Oke, Author of " The Magisterial Synopsis," &c. Second Edition. 12mo. 10s. 6d. cloth. " Mr. Oke's name on a title page is a guarantee for at least a thoroughly ^racWcai "work. He knows precisely what is wanted, and he supj)lles it. The arrangement is new and very conve- nient. It is what it professes to be, a handbook for the sportsman and his legal adviser." — Law Times. 4. Oke's Law of Turnpike Roads ; comprising the whole of the General Acts now in force, including those of 1861 4 the Acts as to Union of Trusts, for facilitating Arrangements with their Creditors, as to the interference by Railways with Roads, their non-repair, and enforcing contri- butions from Parishes, &c., practically arranged. With Cases, copious Notes, all the necessary Forms, and an elaborate Index, &c. By Geosge C. Oke. Second Edition. 12mo. 18s. cloth. '* All Mr. Oke's works are well done, and his 'Turnpike Laws ' is an admirable specimen of the class of books required for the guidance of magistrates and legal practitioners in country districts," — Solicitors' Journal. -& Shelford's Law of Railways. — ^Fourth Edition by Glen. In 2 thick vols, royal 8vo., 63s. cloth. SHELFORD'S LAW of RAILWAYS ; containing the ivhole of the Statute Law for the Regulation of Railways in England, Scotland and Ireland: with Qopious Notes of Decided Cases upon the Statutes,, In- troduction to the Law of Railways, and Appendix of OfRcial Documents. "Fourth Edition. By William Cunningham Glen, Barrister-at-Law, Author of the "Law of Highways," "Law of Public Health and Local Government," &c. ^ B-omMfi Law Magazine. Though we have not had the opportunity of going conscientiously through the whole of this elaborate compilation, we have been able to de- vote enough time to it to be able to speak in the highfst terms of the judgmeut and ability with which it has been prepared. Its execution quite .justifies the reputation which Mr. Glen has already acquired -as a legal writer, and proves that bo one could have been more properly singled out for the duty he has so well discharged. The work must take its ujiqueslionable poiiiion as the leading Manual of the Hallway Law oj Grefit Britain. The cases seem to have been examined, and their effect to be stated with much care and accuracy, aiid uo chapnel from \vhich niforma- tioD coulii lie gained' has been neglected. Mr. GleO, indeed, seems to be saturated with know- ledge of his subject. The value of the work is greatly increased by a uumber of supplemental decisions, which give all the cases up to the, time of publication, and by an iudex which ap- pears to be thoroughly exhaustive." From the Law Times. » " Mr. Glen has done wisely in preserving that reputation, and, as far as possible, the text of Shelford — though very extensive alterations and additions have been required. But he has a clnim of his own. i-le is a worthy successor of the original ^.uthor, and possesses much of the same industry, skill in arrangement and astute- ness in enumerating the points really decided by cited cases. But we have said enough of a work already so well known. It will nave a place not in the library of the lawyer alone. Ic is a book which every railway office should Iceep on its shelf for reference." From the LA.W Jo D R N A L . " Mr, Glen has modestly founded his work as, a superstructure on that of Mr. Leonard Shellord, but he has certainly claims to publish it a*: a purely independent compusition. The toil has been as great, and the reward ought to be as <'omplefe, as if-Mr. Glen had disregarded all his predecessors in the production of treatises on railway law. Since the year 1864 he has been unceasingly engaged in collecting materials, and though he has been ready for the printer for some time, and has delayed the appearance of the volumes in the expectation of legislative changes iu railway law, yet he has expended full five years of care and attention on his work. Let us hope that he will have no caiifie to think his labour lias been in vaiu. At any rate, we may venture to predict that Mr. Cunningham Glen's edition of shelford on Railways will be the stan- dard w_ork-o/ our day in that department of law.'* From the Justice op the Peace. , " Ij'ar be it from us to undervalue Mr. Shel ford's labours, or to disparage his merits, tiutwemay nevertheless be permitted to observe that ii'hat has hitherto been .consider-, d as the ' best work on the subject '- CShelford) has been immeasurably^ im- proved by the application of Mr. Olen's dilligence and learniyig. Sufficient, however, has been done to show that it is in every respect worthy of the reputation jvhibh the work has always tnjoyed. "We feel little doubt that the credit of that wort ■Will be greatly increased by Mr. Glen's instru- mentality, and that not only will he have ably maintained its reputation by his successful exer- tions, but that he will have added' materially to it." FrcOT (Afl Solicitors* Journal. "The practitioner will find here collected together all the enactments bearing on every possible subject which may come before him in connection with railways orrailway travelling. Whatever questions may arise the lawyer who has this book upon his snelves, may say to him- self ' It there has been any legislation at all Con- nected with this branch of the subject I shall at once find it iu Shelford;' and it needs not to be said that on this account the bonk will be a very ' comfortable' one to possess. The colteciion is equally exhaustive in the matternf rules, orders, precedents and documents of official authority. Mq sum UP our review ; as a collection "of statutes aud general information the work will prove extremely uieful, because iu these respects It is so perfectly exhaustive." Michael and Shiress Will's Gas and Water Acts. Post 8vo., cloth. THE GAS WORKS CLAUSES ACTS, 1847 and 1871 ; the Gas and Water Facilities Acts, and other Statutes affecting Gas and Water Companies ; with Introduction, Notes, Cases, Forms, Orders and a copious Index. Bj' W. H. Michael and J. Shibess Will, Esquires, Barristers at Law. Glen's Poor Law Orders. — Seventh Edition. Post 8vo., 21s. cloth. The GENERAL CONSOLIDATED and other ORDERS of the POOR LAW COMMISSIONERS and the POOR LAW BOARD ; with explanatory Notes elucidating the Orders, Tables of Statutes, Cases and Index to the Orders and Cases. By W. C. Glen, Esq , Barrister at Law. Seventh Edition. ©- Chadwick's Probate Court Manual. , Royal 8vo., 12». cloth. EXAMPLES of ADMINISTRATION BONDS for the COURT of PROBATE; exhibiting the Principle of various Grants of Administration, and the correct Mode of preparing the Bonds in respect thereof; also Directions for preparing the Oaths, arranged for practical utility. With Extracts from the Statutes; also various Forms of Affirmation prescribed by Acts of Parliament, and a Supplemental Notice, bringing the work down to 1865. By Samuel Chadwick, of Her Majesty's Court of Probate. •* We undertake to say that the possession of part of the law library of the practitioner, for he this volume by practitioners will prevent many has collected precedents that are in constant re- a hitch and awkward delay, provoking to the qnirement. This is purely a book of practice, lawyer himself and difficult to be satislactorily but therefore the more valaable. It tells the explained to the clients." — Law Magazine and reader what to dOt and that is the information ' Jieviejo, most required after a lawyer begins to practise," ** JMr. Chadwick's volume will be a necessary — Law Times. Grant's Law of Banking. — Second Edition by Fisher. 8vo. 2l5. cloth. GRANT'S LAW of BANKERS an^ BANKING and BANKS OF ISSUE, Limited and Chartered, and Winding-up ; Directors, Managers and Officers ; and the Law as to Cheques, Circular Notes or Letters of Credit, Bank Notes, Exchequer Bills, Coupons, Deposits, &c. (Appendix contains the Bank Notes Issue Bill, and Reasons for Bill, and Official Bank Returns.) Second Edition. By R, A, Fisher, Esq., of the Middle Temple, Barrister-at-Law. ' The present editor lias very much in- creased the value of the original work, a work whose sterling merits had already raised it to the rank of a^standaid text-book." — LawMlagO' zine. '• No man in the profession was more com- petent to trealt the subject of Banking than Mr. Grant. This volume appears opportunely. To all engaged in the litigations, as well as to alt legal advisers of Bankers, Mr. Grant's work will he an invaluable assistant. It is a clear and careful treatise on a subject not already exhausted, and it must become the text-book upon it." — Law Times, *' A Second Edition of Mr. Grant's well- known treatise on this branch of the law has been called for and very ably supplied by Mr. Fisher."— Lou; Times, Second Notice. " The learning and industry which were so conspicuous in Mr. Grant's former work are equally apparent in this. The book supplies a real want, which has long been felt both by the profession and by the public at large," — Jurist. *' We commend this work to pur readers. It is at once practical and intelligible, and is of use alike to the unprofessional as well as the professional reader. No bank, whether a pri- vate concern or a joint-stock company, should be without it." — Money Market Iteview. Parkinson's Common Law Chamber Practice. 12mo., 75. cloth. A HANDY BOOK FOR THE COMJMON LAW PL Parkinson, Chamber Clerk to JUDGES' CHAMBERS. By Geo. the Hon. Mr, Justice Byles. "For this work Mr. Parkinson is eminently qualified."— /Hrij«. " It is extremely well calculated for ihe purpose for which it is intended. So much wnrk is now done in Common Law Chambers by junior clerks that such a liule treatise is much wanted. Mr- Parkinson has performed his task skilfully and with care." — SoUciiors* Journal. " The practice in Chambers has become sufli- ciently important to call for a treatise devoted to it, nor could a more competent man for the task have preseoted himself than Mr, Parkinson, whose great experience as well as intelligence have long placed him in theposiiioii of an autho' rity on all matters appertaining to this peculiar bat very extensive branch of Common Law Prac- tice." — Law Times, "Thee is much that would prove very useful to the practitioner in Mr. Parkinson's compilation, and which, so far as we are aware, is not to be' found in any other book collected with equal con- ciseness." — Law Magazine and Review. iSN_». !S — — — ^ MESSRS. BUTTERWORTH, 7, FLEET STREET, E. C. 27 BuUey and Bund's Bankruptcy Manual: with Supplement. 12mo., 16s.'cloth. A MANUAL of the LAW and PRACTICE of BANK- RUPTCY as Amended and Consolidated by the Statutes of 1869: with an APPENDIX containing tlie Statiites, Orders and Forms. By John F. Bullet, B.A., of the Inner Temple, Esq., Barrister at Law, and J. W. Willis-Bdnd, M.A., LL.B., of Lincoln's Inn, Esq., Barrister at Law. With Supplement, including the Orders to 30th April, 1870. The Supplement may be had separately, Is. semed. " Tt would be impossible, within our limits, to work is completeness, and we think we mny assure place before our readeis any wortliy resume of our readers that work so well doue will meet with this complete JVlanual. The essential merit of the its reward." — Lav) Masatmei, Coombs' Manual of Solicitors' Bookkeeping. 8vo., lOi. 6d. cloth. A MANUAL of SOLICITORS' BOOKKEEPING: com- prising Practical Exemplifications of a Concise and Simple Plan of Double Entry, with Forms of Account and other Books relating to Bills, Cash, &c., showing their Operation, giving Instructions for Keeping, Posting and Balancing them, and Directions for Drawing Costs, adapted to a large or small, sole or partnership business. By W. B. Coombs, Law Accountant and Costs Draftsman. , "«• jTlie varimis Account Sooks desnrihed in the above System, the forms of which are copyright, may be had from the Publishers at the prices stated in the morh, page 274. " It adds some excellent instructions for of complexity, and to be concise and simple, drawing bills of costs. Mr. Coombs is a ■without being inefficient." — Law Journal. practical man, and has produced a practical *' This is not merely a valuable addition to book." — Law Times. the library of every, solicitor, it is a book that " A work in which the really superfluous has every articled clerk, now that i intermediate beenomitted, and that only which is necessary examinations embrace bookkeeping, will be and useful in the ordinary routine in an attor< read with profit and benefit to himself. It ney's office has been retained. He has per- r[iay be fdirly said to exhaust the subject of formed his task in a masterly manner, and in which it treats."— 5o?/citora' Journal. doing so has given the why and the wherejore ** Mr. Coombs* Manual of Solicitors' Sook- ofthewhole system of Solicitors' Bookkeeping. keeping, in our opinion, takes the safe middle The volume is the most comprehensive we re- course, between too great intricacy of arrange- member to have seen on the subject, and from ment on one side, and want of detail and ex- the clear and intelligible manner in which the planation ori the other. His system can be whole has been worked out it will render it equally followed in a small office, where a unexceptionable in the hands of the student regular accountant is not employed, and in and the practitioner, ". — Law Magazine. an oiUce where the staff is large. Solicitors ** So clear do the instructions appear, that a who manage property will find the specimens tyro of average skill and abilities, with applica- of rental account^ given in the Appendix very tion, could under ordinary circumstances open useful," — Iriah taw Times. andkeeptheaccountsofabusinesB; and, so far ''This is a work of considerable extent, pre- as we can judge, the author has succeeded in pared at the request of eminent solicitors, by his endeavour to divest Solicitors' Bookkeeping an experienced law accountant." — AthentBum. Lushington's Naval Prize Law. Royal 8vo., 10*. 6d. cloth. A MANUAL of NAVAL PRIZE LAW By Godfrey LusHiNGTON, of the Inner Temple, Esq., Barrister at Law. Lovesy's Law of Arbitration (Masters and Workmen). 12mo. 4s. cloth. (Dedicated, by permission, to Lord St. Leona/rds.) THE LAW of ARBITRATION between MASTERS and WORKMEN, as founded upon the Councils of Conciliation Act of 1867 (30 & 31 Vict. c. 105), the Masters and Workmen Act (5 Geo. 4, c. 96), and other Acts, with an Introduction and Notes. By C. W, Lovesy, Esq., of the Middle Temple, Barrister at Law. o- 28 LAW WORKS PUBLISHED BY Trower's Church Building Laws. Post 8vo. 85. cioth. THE LAW of the BUILDING of CHURCHES, PAR- SONAGES, and SCHOOI.S, and of the Division of Parishes and Places. By Charles Francis Trower, M.A., of the Inner Temple, Esq., Barrister at Law, late Fellow of Exeter College, Oxford, and late Secretary of Pre- sentations to Lord Chancellor Westbury. *' We may pronounce it a useful work. It con- '* In a well-arranged volume this gentleman tains a great mass of information'of essential im- points out concisely and intelligibly how the ili&i- pprt, and those who, as parishioners, legfil ad- culties which usually beset parlies iu such mat- visers, or clergymen, are concerned with glebes, -ters maybe avoided,"— Oj/orrf UniveTsity Herald. endowmeiits,dtstrict chapeli-ies. parishes, ecclesi- " On all the topics germane to its title this vo. astical commis&ions, and such like matters, about Inme will be found a handy book of ecclesiastical which the public; and-notably the clerical public, law, and should on that account be made widely seem to know but little, but which it is needless known among the clergy."— CA«rM Mail, to say are matters of much importance."—'^/*-' "Itisacompaetandhandy treatise, verytlearly citors' Journal. written, well arranged, easy of reference, and, be- " His book is just the one we could wish every sidbs a good table of contents, it has an elaborate el6rgymari to possess, forif itwas in thehandsof index. It is a book we are glad to have and to our readers they would be saved the trouble of recommend*'' — Literary Churchman, asking usvery many questions."— C/eriVaUoHrnfl/. Field's Law Relating to Curates, &c. Post 8vo., Qs. cloth The LAW RELATING to PROTESTANT CURATES and the RESIDENCE of INCUMBENTS or tlieir BENEFICES in ENG- LAND and IRELAND, By C. D. Field, M.A., LL.D., late Scholar of Trin. Coll. Dublin, and now of H. M.'s Bengral Civil Service; recently Judge of the Principal Court of Small Causes at Kishnaghur; and Registrar of H. M.'s High Court of Judicature at Fort William in Bengal ; Author of *' The Law of Evidence in India," &c. " A clear and concise exposition of a branch " Dr. Field is accurate, so far as we can of the law not often brought under the notice of Judge, and has completed liis self-elected task solicitors, but of considerable interest to the 'saLiifactorily. The vast number of stetutt-s clergy." — Law Times. bearing upon the law of Curates renders a legal ** At all events curates t^ow have no ground of guide necessary, and also the many decisions complaint, because the treatise before us is a on their imprests. Dr. Field has done his work very intelligible and tolerably full exposition of judiriously, and a copious index renders the the laws with whicti they are immediately con- results of his labours readily available to cemed."— iaw Journal* others."— "Sr. James' Chrcnicle, Petersdorff's Abridgment of the Common Law. — New Ed. 7 vols., with Supplement, Royal 8vo., complete to the year 1870, il. cloth. A CONCISE, PRACTICAL ABRIDGMENT of the COM- MON AND STATUTE LAW, as at present administered in the Common Law, Probate, Divorce and Admiralty Courts, excluding all that is obsolete, overruled or superseded : comprising a Series of Condensed Treatises on the different Branches of the Law, with detailed Directions, Forms and Prece- dents ; an Alphabetical Dictioniiry of Technical Law Terms and Maxims, and a Collection of Words that have received a Special Judicial Construction ; the whole illustrated by References to the principal Oases in Equity, and in the Scotch, American and Irish Reports, and the most eminent text writers. By Charles Petersdobfp, Serjeant-at-Law, assisted by Chaki.es W. Wood, Esq., and Walker Marshall, Esq., Barristers-at-Law. The Supplement, 1863 to 1870, as a separate work, 1 vol. Royal 8«o., 25s. oloU. -© <^ MESSRS. BUTTERWORTH, 7, FLEET STREET, E. C. 29 Robson*s Law and Practice in Bankruptcy. 8vo.,305. cloth. A COMPLETE TREATISE on the LAW of BANK- RUPTCY, containing a full exposition of the Principles and Practice of the Bankrupt Law, including the alterations made by the Bankruptcy Act, 1869; with a copious Index, and an Appendix containinsr the Bankruptcy Acts, and the General Rules and Orders. By George''Yotjng Robson, of the Inner Temple, Esq., Barrister at Law. " The work before us is a very elaborate treatise, and calls for -warm comraendation. "We congratulate Mr. Robson in succeeding in a work which demands talent, tact and in- dustry. Indeed, the work is a model of handi- ness and lucidity. The author has left nothing undone to render his work complete. It is not often that we can_ accord so much praise to a book; but we are sure that no one who consults Mr. Robson*s work will say that our commendation is undeserved." — Law Journal. *' This work is, as its title asserts, a Treatise on the Law of Bankruptcy. Instead of fol- lowing the orthodox plan of giving us the sec- tions of the act with notes in microscopic type, in which are collected with an infinite expenditure of labour extracts from every case bearing directly or remotely on the subject, we have here a distinct attempt to discover the principles in accordance with which the law has been built. This method has peculiar ad- vantages to recommend it to the practitioner. It gives him a grasp of his subject with which no mere summary of cases and text will supply him. But it is to the student to whom a hook, dealing with the subject in this form, is pecu- liarly valuable. We have great pleasure in giving it the warniest recommendation to our readers." — Law Magazine. Sir T. E. May's Parliamentary Practice.— Sixth Edition. One very thick volume, 8vo., 35s. cloth. A TREATISE on the LAW, PRIVILEGES, PROCEED- INGS and USAGE of PARLIAMENT. By Sir Thomas Ebskine Mat, K.C.B., of the Middle Temple, Barrister at Law; Clerk of the House of Commons. Sixth Edition, Revised and Enlarged. Contents : — Book I. Constitution, Powers and Privileges of Parliament.— Book TI. Practice and Proceedings in Parliament.— Book III. The Manner of Passmg Private Bills, -with the Standing Orders in both Houses, and the most recent Precedents. ' Sir T. Erskine May deserves the best reputation among lawyers than May's Parlia- thanks of all who are interested in parliamen- tary proceedings^ for the care and attention he has bestowed in preparing this edition of his valuable work." — Law Magazine. " We hail with satisfaction a new edition of this admirable work. The politician, the law- yer, the parliamentary agent and the educated gentleman, will find here a teacher, a guide, a digest of practice and a pleasing companion. To lejral readers, the first portion of this work is of the most value. We may advert to the great care with which the author has noted up and incorporated in this new edition all the changes and events of importance since the publication of the fifth edition."— £aaj Journal. ■* " Six editions in twenty-four years attest the estimation in which this great work is held by the members of successive Parlia- ments, by the promoters of private bills, and by constitutional lawyers. It is an exhaustive Treatise on that most lawless of all law the Law of Parliament." — Law Times. " Perhaps no work has achieved a greater mentary Practice. Since the first publication in 1844, a succession of editions have been called for, and now, after an interval of four years since the issue of the fifth, a sixth edition has been found necessary. The work is too well-known to need the repetition of any description of Us scq^&,"— Solicitors' Journal. '* His well-known treatise on the * Law and Usage of Parliament' at once placed him upon a level with Hatsell, and is now the recognized text-book, not in England only, but in her colonies, and wherever parliamentary govern- ment is attempted. It may almost be said to be better known at Australia than at West- minster, as the practice of colonial legislatures is less settled than our own, and our country- men at the Antipodes are more combative than ourselves upon points of order and pro- cedure. In Germany it has been translated for the use of the Prussian and North German Parliaments, and we have found it in a book- sellei's-shop at Pesth, in the Hungarian lan- guage, under the name of ' May Erskine TamAs.' "—Times. ©- Drewry's Equity Pleader. 12rao., 6s. cloth. A CONCISE TREATISE on the PRINCIPLES of EQUITY PLEADING; with Precedents. By C. Stewart Drewky, of the Inner Temple, Esq., Barrister at Law. "It will be found of great utility as intro- refresh the memory after the study of the ductory to the more elaborate treatises, or to larger books."— Xoki Times., -s* 104:,. 105, with Notes, and Index. By R. C. Sewell, Esq., Barrister at Law. 12mo. 9s. boards. A Legigraphical Chart of landed Property in England from the time of the Saxons to the present ^ra. By Charles Fearne, Esq., Barrister at Law. On a large sheet, 6s. coloured. Dwyer's Compendium of the Principal Laws and Regulations relating to the Militia of Great Britain arid Ireland 12mo. 5s, 6^. doth. The Common Law of Kent ; or the Customs of GaTelkind. With an Appendix concerning Borough English. By T. Robinson, Esq. Third Edition, with Notes and References to modem Authorities, by John Wilson, Esq. Barrister at Law. 8vo. 18s. boards. The Marriage and Eegistration Acts, 6 & 7 Will. 4, caps. 85, 86 ; with Instructions, Forms, and Practical Directions. The Acts of 1837, viz. 7 Will. 4, c. 1, and 1 yict. c. 22, with Notes and Index. By J. S. Burn, Esq., Secretary to the Commission.-- 12mo. 6s. 6rf. boards. A Treatise on the Law of Gaming, Horse-Racing, and Wagers. By Frederic Edwards, Esq., Barrister at Law. 12mo.' 5s. cloth. A Digest of Principles of English Law ; arranged in the order of the Code Napoleon, with an Historical Introduction. By George Blaxland, Esq. Royal 8vo. £1 : 4s. boards. A Treatise on the Law of Commerce and Manufactures, and the Contracts relating thereto; with an Appendix of Treaties, Statutes, and Precedents. By Joseph Chitty, Esq. Barrister at Law. 4 vols, royal 8vo. £0 : 6s. boards. Anstey's Pleader's Guide ; a Didactic Poem, in Two Parts* The Eighth Edition. 12mo. 7s. boards. Hardy's Catalogue of Lords Chancellors, Keepers of the Great Seal, and Principal Officers of the High Court of Chancery. By Thomas DuFFUs Hardy, Principal Keeper of Records. Royal 8vo'. 20s. cloth. (Only 250 copies printed.) Pothier's Treatise on the Contract of Partnership : with the Civil Code and Code of Commerce relating to this Subject, in the same Order. Translated from the French. By O. D. Tudor, Esq., Barrister. 8vo., 5s. clotb. 4 38 LAW WORKS PUBLISHED BY Browne's Practical Treatise on Actions at Law, embracing the subjects of Notice of Action; Limitation of Actions; necessary Parties to and proper Forms of Actions, the Consequence of Mistake therein ; and the Law of Costs with reference to Damages. By R. J. Browne, Esq., of Lincoln's Inn, Special Pleader. 8vo., 16s. boards. . Archdeacon Hale's Essay on the Union between Church and State, and the Establishment Tjy Law of the Protestant Reformed Religion in England, Ireland, and Scotland. By W. H. Hale, M.A., Archdeacon of London. 8vo, Is. sewed. '• Thi8 is the productiop of a very able man,' and will be read by lawyers as -well as by divines with interest and advantage." — LeLW^ Magazine. The judgment of the Privy Council on Appeal in the Case of Hebbert v. Purchas. Edited by EdVahd Bullock, of the Inner Temple, Barrister at Law, Reporter in Privy Council for the Law Journal Reports. Royal 8vo., 2s. Qd. sewed. Remarks upon the Agita;tion consequent on the Judgment of the Privy Council in the Case of Hebbert v. Purchas. By Canon Robertson,' M.A. 8vo., Is. sewed. Burder ij- Heath. Judgment delivered on Hovember 2, 1861, by the Right Honorable Stephen Lushington, D.C.L., Dean of the Arches. Folid, Is. sewed. The Case of Long «• Bishop of Cape Town, embracing the opinions of the Judges of Colonial Court hitherto unpublished, together with the de^. cision of ,the Privy Council, and Preliminary Observations by the Editor. Royal 8vo., 6s. sewed. The Judgment of the Dean of the Arches, also the Judgment of the PRIVY COUNCIL, in Liddell (clerk), and Home and others against Westerton, and Liddell (clerk) and Park and Evans against Beal. Edited by A. F. Baypord, LL.D. : and with an elaborate analytical Index to the whole of the Judgments iri these Cases. Royal 8vo., 3s. 8d. sewed. Hamel's Law of Eitualism in the United Church of England and Ireland. With Practical Suggestions for Amendment of the Law, and a Form of Bill for that purpose. By F. Har&ave Hamel, Esq., of the Inner Temple, Barrister at Law. Post 8vo. Is. sewed. Archdeacon Hale's Inquiry into the Legal History of the Supre- macy of the CTown in Matters of Religion, with especial reference to the Church in the Colonies; with an Appendix of Statutes. By W. H.,Hai.e, M.A., Archdeacon of London. Royal 8vo. 4.'!. cloth. " The archdeacon lias sliowu that lie possesses a legal uiind in tlie good sense of the term." — Law Magazine. The Judgment delivered by the Right Hon. Sir Robert Phillimore, D.C.L., Official Principal of the Court of Arches, in the Cases of Martin v. Mackonochie and Flamank v Simpson. Edited by Walter G. F. Phil- limore, B.A., of the Middle Temple, Fellow of All Souls College, and Vinerian Scholar, Oxford. Royal 8vo. 2s. Qd. sewed. Judgment delivered by the Right Hon. Lord Cairns on behalf of the Judicial Committee of the Privy Council in the case of Martin v. Mackonochie. Edited by W. Er.nst Browning, Barrister at Law. Royal 8vo. Is. Qd. sewed. The Privilege of Religious Confessions in English Courts of Justice considered in a Letter to a Friend. By Edward Badeley, Esq., M.A., Barrister at Law. 8vo. 2s. sewed. d- -» MESSRS. BUTTERWORTH, 7, FLEET STREET, E.G. 39 i^eto Simorfes anti fteto OBlittions in preparation. The Gras Works Clauses Acts and the Gas and Water Facilities Acts. By W. H. Michael and J. Shiress Will, Esqrs., Barristers at Law. In post 8vo. A Collection of Mortgage Precedents and Forms of Decrees, in- tended as a Companion Volume to the General Law of Mortgage. — By W. R. Fisher, Esq., of Lincoln's Inn, Barrister at Law. In 1 vol. royal 8Vo. A Treatise on the Law of Voluntary Settlements. By Arthur Joseph Hunt, of the Inner Temple, Esq., Barrister. at Law, Author of "The Law of Boundaries and Fences." In post 8vo. Tomkins' Institutes of the Roman Law.— Parts II. and III. completing the Work. In royal 8vo. Principles and Rules of the Criminal Law, as laid down and ex- pressed by English Judges; collected and arranged, with Introductory Abstracts and Notes. By Philip Anstie Smith, Barrister at Law. Vol. I. (Offences against Property). In royal 12mo. (To be completed in 2 vols.) A Guide to the Authorities on International Law, consisting of References to the various Subjects treated of in the Works of popular Writers upon the Law of Nations, &c. By Edward Hertslet, of the Foreign Office. In 8vo. A Treatise on the Law of Criminal Procedure. By James Edward Davis, of the Middle Temple, Esq., Barrister at Law, Stipendiary Magistrate at Sheffield. In 1 vol. 8vo. Hamel's Laws of the Customs. A New Edition. In 8vo. Hertslet's Commercial Treaties. Vol. XII. By Edward Hertslet, of the Foreign Office. In 8vo. The Law Magazine and Law Review for Hovemher, 1871, The Law Examination Journal and Law Student's Magazine. No. 9, for Michaelmas Term, 1871. • The Preliminary Examination Journal and Student's Literary Magazine.' No. 4. October Examination. & — -—r- . — _ — -0 I On, Juli}20th, IWll, Tvai published, priee Is., by post Is. Id.i to be negularly continued, and published as soon as praetioable after each Prelimmary Bxamination, in February, May, July and October, No. Ill, of AND STUDENT'S LITERAEY MAGAZINE. CONTENTS OF No. III.— Jul^, 1871. I. Miscellaneous Notices and Reviews. — II. Lee- Examination held on the 12th and 13th days of turcs on Language. Part II. — III. Synopsis of Julyi 1871, with the Answers. — V. Kevlew of pleading Authors, Statesmen Poets and Philo- the July Exarauiatiou.— VL Correspondence. sopUers.— IV. The Questions of the Preliminary CONTENTS OF No. II.— May, 1871. I. Miscellaneous Notices and Keviews of Educa- 11th days of May, 1871, with the Answers. — tional Works.— II. Lectures on Language. — III. V. Keview of the May Examination and Re- v" Synopsis of leading Authors, Statesmen, Poets marks on the Study ol English History. — VL and Philosophers.— IV. The Questions of the Correspondence. ^Preliminary Examination held oA the 10th and ' CONTENTS OF No. I.— February, 1871. I. Introductory Remarks and Review of the past the Preliminary Examination held on the 15th Exanninations. — II. Essay on the Imfierfections and 16th days of February, 1871, with the An- of the Orthography of the English Latiguage. — swers.^V. Review of the February Examina- III. Synopsis of Leading Authors, Statesmen, tion, and names of best books to be studied. — Poets and Philosophers. — IV. The Questions of VI. Correspondence. , Edited by JAMES ERLE BENHAM, formerly of King's College London ; Author of " The Student's Examination Guide," &c. y Instructor of Candidates for the Preliminary, Intermediate and Final Examinations for Solicitors ; the Preliminary Examinations for the Bar and the Royal CoUege of Surgeons ; the Home and Indian Civil Service, &c. &c. (N EW SERIES.) PttUishedifluarterly, at 5s,, in February, May, August & November. No. 62, published in August, contains : — I. The law of Fixtures, its Historical Develop- Law of Landlord and Tenant. — ^VT. The Trial of ment and present State., Part II. By Archibald Algernon Sidney. — ^vn. Bankruptcy Business. — Brown.— It. Sanitary Legislation, considering YSII. Classification of Eights in the Institutes particularly the recent Report of the Royal of Gains and Justinian; a Critique. — IX. The Sanitiry Commission.— III. On the Transmis- Law of Distress.— X. Prison Discipline and Ke- sion of Bills of Lading, and other Negociable formatory Treatment.- XI. The Literature of Instruments by Telegraph.— IV. County Court the Irish Land Question.— XII, Scotch Coses, Commitmehts, By F, M, Wetherfleld.— V. The &c Events of the Quarter, Sio, London : Buttekwobths, 7, Fleet Street, Her Majesty's Law Publishers. Imprinted at London, nvmber Seuen in Flete strele wit/un Temple barre, whylom the signe of the Hande and starre, and the Hovse where liued Richard Tottel, prtnteir b» S>pt(tal patentii of t|)e \iakti of tl^e Common latue in the seueral Reigns of Kng Edrv. VI. and tif the qyenes Marye and Elizabeth, ,J,^«- Mv. iBM'^ |*lagi«gtrrtal as^orRe* Oke's Magisterial Sjnopsis ; a Practical Guide for AT agistrates; their Clerks^ Attoniies, aud C'^i'.fttP.bk'S ; Surrmiary Ci'-nvict-'as and Indictable Ori;:':ices, v/iU- i]:>':\i Prjialties, runi^inients. 1* ■., being alpJiaheUcallif and tttl'iih-:. hi ari'fxvfjed : with a €>;> ^ , - . , - ,., y*??;^// EdUlon, mpch enlarged, liy Ge(7L.ok C. Oke, Chv'^i Cierk vj the Lord Mayor of London. In 2 vols. bro. f58«. cloi'j. " The tenth edition of this •, alii^.h'e co.npt'ntliura of tnagi^.terial law makes its appearance in two voiumts, a j^^r^jit in.ipn>v<"":i*:i.!: I'.it ccnvenience of reference upon the sitigle bulky W^sme of tlie foiiiicr ey th" I'lict \\\-<\\. ■-.■ nir.ih eil-tx!. ^v.-- r.r.iiliiihcd so lately as 1636. £a accordance with . the sUggcs.iu \ Tia;!.' t': Mr. Oke. tlio pi-i, ,^,.ni- p'iii-ujn has ■beeji prepared and issued immediately after the (omuV. eciil: \\ oMl-.. tqualty ii >.■■■'■,' ■, v ■■\y\acit\ the Magisterial FonnuUst. The careful ; and roiiscitiiticus trcainient ^\iia'h Mi ■'■'':. i ^::ys bestows upon whatever he takes inhand, entiiics hiui to full erstut when he .ay \Vi:\ ' i.i.niv titles have been enlarged, mucii new matter inctTted, Jiiid a variet.v of minuti; inijr v i ,v m n ade in the references, upon all of which Ihave bestowed my personal attention and uii-iost Larf.'" — Lcuc Majazine. 2, Oke's Magisierial ForMufet ; being a Complete Col- lection of rorms aiid Precedents for pmctical use in all Cases out of l^uarter Sessions, and in Parochial McitterB, by Hngisirates, their Clerks, Ar.-oniies and Consrobles. By Ot.oi>/s.ts> C. Oicd, Author of "The Magisterial Synopsis," &e. Fourth EdUio7%, enliu'ged and iioprcved. 8%^o. 38^'. oloth. " This workis ioo v.'ell known to need eulogy. It is in universal use in in:-: r-n i^^' : rib : it has been out of print for some tii'ne, and a new edition was urgtiitly requ ivd. . .^\- that Mr. Oke purposely delayed it that ifc ini^rht be ir.nde contempcraneous, or n^ ti: ii the Synopsis. The contents are brought down to the end cf last year, and^ecnsei;"". . eludes all the formsrequiredhy the new statutes and decisions of the six yeara that ].. ■ : since the publication of the third edition. It is a book that has been kn.,wn so lo.- ;, :-.;.. io extensively, that no further description of it is needed now." — Law Times, 3. Oke's Handy Book of the Game amd Fishery Laws; containing the whole Law as to Game, Licences and Certificates, Poaching Prevention, Trespass, Rabbits, Deer, Dogs, Birds and Poisoned Grain throngliout theitJnited Kingdom, and Private and Salmon Fisheries in E:ij:- land. Systematically arranged, with the Acts, Decisions, Notes, Forms, ■ Suggestions, &c. By Geobge C. Okb, Author of "The Magisterial Synopsis, "4?^ Second Edition. 12mo. 10s. 6rf. cloth. " Mr. Oke's name on a title page is a guarantee for at least a thorouphlv prarti'-a! work. He knows precisely what is wanted, and he supplies it. The arrangement is new and very convi;- nient. It is" what it professes to be, a handbook for the sportsman and his legal ad^-iserV* — Laa Times. "*.-= 4. Oke's Law of Turnpike Roads ; comprising the whole of the General Acts now iu force, including those of 1861 ; the Acts cs to Union of Trusts, for facilitating Arrangements w-ith their Creditors, as to the interferon'-^ by Huilways wi'Ji Boi-dti, tliijir non-rf>pair, and enforcing confri- butions !.oni P:)ritli(;s, kc, ;>:■}.( tJcally .irratjifed. With Cases, copious Notes, all tlie jioessary Forn;-., fi.-i an t'),i''oraii Index, &e. By Geo.hob C. Oke. Second Edition. IMm. Z8,v. oImiIi. " All Mr. Oke's works are well done, and l-.ia 'Turnpike Laws ' is an admirable specimen of the class of books required for the guidance of magistrates and legal praotitianers in counu)- diBtrict8."-'-' - «SiJ Zfi-^-Ai '^ :t^- K'' ?^''