IZIO Cornell University Library JX 1268.F45 1876 Outlines of an international code / 3 1924 016 933 347 Cornell University Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/cletails/cu31924016933347 OUTLINES OF AN International Code, BY DAVID DUDLEY FIELD. SECOND EDITION. NEW YORK; BAKER, VOORHIS & COMPANY LONDON: TRiJBNER & COMPANY. 1876. Entered, according to Act of Congress, in the year lti76. By DAVW DUDLEY FIELD, In tie office ot the Librarian of Congress, at Washington. .^ Siej-twtyped and Printed oy ToBm & Bunck. 131 WUltam dtr«eU PREFACE TO THE SECOND EDITION. In the preface to the first edition I stated that " this work should be taken for what its name imports : the ' Draft Out- lines of an International Code.' It is not put forth as a completed Code, nor yet as the completed outlines of a Code, but as a draft of the^ outlines. It is intended for suggestion, and is tog Jinderigo careful and thorough revi- sion." Since that time I have had the advantage of many- suggestions, and have given the work a careful revision. In doing so I have made various corrections in expression and some in substance, and have added provisions of consider- able importance. Among these additions is a new chaptei on international bills of exchange, a subject just now receiv- ing a great deal of attention in Europe. The chapter on postal correspondence has been changed so as to make it conformable to the late postal treaty between the principal nations of Christendom. Provisions have also been intro- duced looking to the perpetual neutrality of the Suez Canal, to more stringent responsibility for shipwreck, and to greater security against collisions at sea. The word " draft " I have omitted from the title as no longer applicable. The numbering of the articles is the same as in the first edition, and when additional provisions' are introduced, they are designated by letters of the alphabet. As the work now stands, it aims to give a scheme of international law, such as publicists would recommend to PREFACE. governments, and at the same time, by pointing out in the notes the difiFerence between existing rules and those recommended, to show what the former really are at the present time. A Code is a digest of law, moulded into distinct proposi- tions, and arranged in scientific order. An international Code is an. extended treaty. The late postal treaty is a Code as far as it goes, or rather one chapter of a Code. The fact that such a treaty has been made between sixteen different nations is proof that a general treaty can be made embracing one subject. Why may it not be made to embrace all, or, if not all, nearly all, subjects of international concern ? Since the first edition, several events of much significance in the history of international law have happened : the for- mation of two international societies for the study and improvement of the law of nations ; the conference held at Brussels on the invitation of the Emperor of Russia, and the proposition of the government of Peru for a conference of the different states of North and South America. The Institute of International Law was founded at Ghent, on the loth of September, T873. It is an exclusively scien- tific association, whose object is to favor the progress of international law, formulate its general principles, and give assistance to any serious endeavor for its gradual and pro- gressive codification. The number of active members is limited to fifty. There have been two sessions since the first, one at Geneva, in September, 1874, and the other at the Hague, in August, 1875. The Association for the Reform and Codification of the Law of Nations was founded at Brussels, on the loth of October, 1873, and consists not only of jurists, but of men known as statesmen, economists, and philanthropists, with the view not only of adding its labors to those ol the Institute, but of aiding by independent methods the reform and codifi- PREFACE. cation of the law of nations, so as to promote pacific relations between the nations and the progress of international civili- zation. The two associations are really complements of each other. The Brussels conference was called by the Emperor of Russia with a view to ameliorate the usages of war, or, to' use an expression of an eminent French publicist, to pro- mote " the civilization of war." The recommendations of the Conference are given in the appendix to this volume. The proposition of the government of Peru is also given in the appendix. I can not but express my regret that neither the invitation of the Emperor of Russia nor that of the gov- ernment of Peru has been accepted by the government of the United States. David Dudley Field. New Yobs, July, 1876. PREFACE TO THE FIRST EDITION. This work should be taken for what its name imports : the " Draft Outlines, of an International Code.'' It is not put forth as a completed Code, nor yet as the completed out- lines of a Code, but as a draft of the outlines. It is intended for suggestion, and is to undergo careful and thorough revi- sion. The present volume is but a part of the whole work. Another will appear in a few months, treating of the modifi- cations in the relations of nations, and of their members, to each other, produced by a state of War. The history of the undertaking is this : At the meeting •of the British Association for the Promotion of Social Science, held at Manchester, in September, 1866, 1 ventured to propose the appointment of a committee to prepare and report to the Association the Outlines of an International Code, with the view of having a complete Code formed, after careful revision and amendment, and then presented to the attention of governments, in the hope of its receiving, at some time, their sanction. The proposition was favorably received, and a copimittee was appointed, consisting of jurists of different nations. In the distribution of the labor among the members of the committee a portion was assigned to me. It was at first understood that, after preparing their respective portions, the members should interchange them ■with each other, and then meet for the revision of the whole II PREFACE. and the completion of the joint production. But the dis- tance of the members from each other has made it difficult for them to take note of each others' progress, and to inter- change their respective contributions with advantage, pre- vious to a general meeting.for consultation and revision. I have therefore thought it most convenient, for the other members of the committee as well as for myself, to present my own views of the whole work, by essaying a draft of the whole, hoping that my colleagues may do the same. However little my labors may be worth, I submit them, though with great diffidence, as my contribution to the general design. The scheme embraced not only a codification of existing rules of international law, but the suggestion of such modi- fications and improvements as the more matured civilization of the present age should seem to require. The purpose was to bring together whatever was good in the present body of public law, to leave out what seemed obsolete, unprofitable or hurtful, and then to add such new provisions as seemed most desirable. The Code which the Association would propose is such an one as should win the commendation of good and wise men, for international regulations, in the interests of humanity and peace. With the view of aiding in the formation of such a Code, the present work has been undertaken. What in it is old will generally be found explained and justified by the notes ; what in it is new is suggested for the consideration of those who think that much may yet be done by the authority of public law for the peace and prosperity of the world. There will of course be found many omissions and many mistakes. In the progress of the work some provisions have been introduced which require a modification of earlier ones, but they will be readily perceived. Thus the word " league " was in some instances used to designate a measure of dis- tance, before the details of the Title on " Weights and Measures " were fixed upon. PREFACE. Ill In the preparation of this volume I have had the assistance of several gentlemen, to whom I am under great obligations. I would especially mention President F. A. P. Barnard, of Columbia College, who prepared the Titles on " Money," " Weights and Measures," " Longitude and Time," and " Sea Signals." I must acknowledge my indebtedness also to Messrs. Austin Abbott, Charles Francis Stone, and Howard P. Wilds, gentlemen of the New York Bar, who have greatly aided me in different parts of the work. David Dudley Field. Nbw Tokk, January, 1873. ANALYSIS OF THE CONTENTS. PRELIMINART ARTICLES. Page AbticI/E 1. Adopting clause 1 3. " jSTation" defined 2 3. Use of 'the term " nation" in this Code 3 4. Use of the term " person" in this Code 3 5. " Member" defined 3 6. " Subject" and " citizen" defined 8 7-11. Divisions of the Code 4. 5 BOOK FIRST. PEACE. Division Fikst. Pitblic International Law. Second. Pbivatb International Law. DIVISION FIRST. PUBLIC INTERNATIONAL LAW. Pabt I. Relations of Nations to each other. II. Relation of a Nation to the Persons and Property OF the Members of other Nations. III. Uniform Regulations for Mutual Convenience. IV. Provisions foe the Preservation of Peace. PAET I. THE RELATIONS OF NATIONS TO EACH OTHER. Title I. Essential Rights. II. Extra-terbitoeial Action. III. Intbecouese. IV. International Compacts. V. Removal of Pbbsons. 6 ANALYSIS TITLE I. ESSENTIAL BIGHTS OF NATIONS. Chaptek I. Sovereignty. II. Equality. III. Perpetuity. IV. Tbrkitory. V. Property and Domain. OHAPTER I; sovereignty. Page Article 13. " Sovereignty" defined • '^ 13. Foreign powers not entitled to act within a nation 9 14. Sovereignty, how vested 9 15. Sovereign or chief officer not subject to other jurisdic- tion 9 CHAPTER II. equality. •Article 16. Equality in rights and rank 10 17. National emblems 10 CHA P TER III. perpetuity. Article 18. Diminution of territory or population , 10 1^. Change in form of government or in dynasty 11 30. Anarchy 11 31. Double crown 11 33. Annexation of one nation to another 13 33. Cession or other annexation of part of territory 13 84. Division of a nation , 13 35. Apportionment of property ..'. 13 36. Apportionment of debts 13 CHAPTER IV. territory. Article 37. " Territory" defined , 14 38. Boundary by the sea 15 39. Adjacent islands 15 ' 30. Boundary by a stream or channel 16 31, 33. Boundary by inland lake, &c 16 33. Wilderness ig 84. Power to determine boundaries 17 35. Exception '_ 17 36. Injuring boundaries, marks or monuments 17 37. Loss of territory, and acquisition of territory 17 38. Acquisition by occupation 18 39, 40. Extent of occupancy Ig OF THE COTTTEKTS. 7 Page Akt. 41-43. Accretion 18, 19 44. Reclaiming land washed away 19 45. Ownership of islands 19 46. Changes of stream 19 47. Transfer or cession 19 48. Conquest 20 CHAPTER V. PEOPBRTT AND DOMAIN. Abticle 49. Capacity to have property 30 50. Eminent domain 31 61. Internal domain 33 53. Prescription 23 TitLB II. bxtea-tekbitokiai, action. Chaptbb VI. Navigation. VII. DiSCOVBEY. VIII. EXPLOKATION AND COLONIZATION. IX. PiSHBKtBS. X. PiKACT. CHAPTERVI. NAVIGATION. Akticlb 53. Freedom of the "high seas." .'. 23 54. Navigation of the high seas and other waters 34 55. Rivers communicating with the sea 24 56. Inland waters 34 57. Menacing armaments 34 58. Military ports 24 59. Public vessels may refit in port 25 60. Restrictions 35 61. False colors and signals 35 *i3. Right of approach 25 63. "Visitation"' defined 36 64. Right of visitation 36 65. Visitation on the high seas 36 66. Mode of visitation 36 67. Salutes 37 68. Searches forbidden 37 69. Flag and documents .' 37 CHAPTER VII. DISCOVERT. Article 70. Right of discovery 38 71. Authority ; 28 8 ANALYSIS Page Article 72. Ratification 28 73. Right of possession 28 74. Its exercise, liow manifested 29 75. Limits of continental discovery 39 76. Abandonment of right of possession 29 CHAPTER VII L BXPLOBATIOSr AND COLONIZATION. Article 77. Right of exploring and colonizing. 30 78. Exception 30 79. Right of pre-emption 30 CHAPTER IX. PISHBRIBS. Akticlb 80. Common right of fishery 31 81. Limits 31 CHAPTER X. piracy. Akticlb 82, 88. " Pirates " defined 33, 33 84. Harboring pirates forbidden 33- 85. Capture of pirates authorized 33. 86. Trial and condemnation 33 87. Destruction 34 88. Captor s reward. . . .' 34 89. Restoration of property 34 90. Salvage, &c., not allowed to public ships 35^ TITLE 1 1 L INTBRCOtmSB OF NATIONS. Chapteb XI. Gbnekal Pbovisions. XII. Pdblic Ministeks. XIII. Consuls. XIV. COMMISSIONEBS. CHAPTER XL genbeal provisions. Article 91. Intercourse, by what agents conducted 37 92. Ministers or consul's nation, and consul's or commis- sioner's residence defined a^r 93. Nations forbidden to entertain unoflacial negotiations.. 37 94. Public agents forbidden to make unoflacial negotiations or communications on 95. Falsely assuming diplomatic powers, &c 3g OF THE CONTENTS. .9' Page Article 96. Right of legation, &a 38 97. Obligation to receive public agents 38 98. A nation may refuse to receive its own members 39 99. Personal objections 39' 100. Rank or status 39' 101. Conditions may be imposed 40 102. Conditional reception 40' 103. Inconsistent pretensions 40 104. Several missions 40' 105. List of family, official and personal, to be furnished.. . 41 106. Secretary, in case of absence, &c., of chief 41 107. Insignia of office, and flag 41 108. Exemption from liability for official acts 43' 109. Emergencies 42 110. Duty to enforce exemption 42 111. Interference with a despatch to or from a public agent. 43' CH AP TER XII. PUBLIC MINISTERS. Section I. Appointment and reception. II. Rank. III. Powers. IV. Immunities. SECTION I. appointment and reception op public ministers. Article 112. Four classes of ministers 44 113. Letters of credence.. 44 114. Letters, how issued 44 115. Power to act in a congress or conference 45 116. Full power to negotiate treaty 45 117. Notifying arrival 45 118: Recognition of minister's nation by reception 45 119. Official and personal family 45 SECTION II. rank op public ministers. Article 120. Classes 46 121. Relation between courts 46 SECTION III. powers op public ministers. Article 132. Powers defined by instructions 47 133. Issue of passports 47 134. Authentication of documents 47 135. Communications, when to be in writing 47 136. Termination of powers 47 137. Death 48 10 ANALYSIS Page Aetiole 128. Recall 49 139 Contingent negotiation in case of death, deposition or abdication 49 130. Suspension of powers, pending recognition 49 131. Withdrawal 50 132. Dismissal 50 188. Assigning reasons 50 134. Preventing personal intercourse 50 135. Ratification of old letter of credence 50 SECTION IV. IMMUNITIES OF PUBLIC MINISTBKS. Aeticlb 136. Right of passage 51 137, 138. Passage during war 51, 52 139. Exemptions of person and property 52 140. Duration of exemptions 52 141. 143. Exception as to exemptions 53 143. Dwelling-house 53 144. Family, oflBcial and personal 54 145. Servants 54 146, 147. Waiver of privileges 54 148. Propejjty in trade 55 149. Retiring minister 55 150. Domicil 55 151. Jurisdiction of his own nation 55 153. High crimes 55 153. Arrest of criminal act 56 154. Right to punish family 56 155. Taxes 56 156. Importations 56 157. Bearers of dispatches 57 158. Reparation for violence to property 57 CHAPTER XIII. CONSULS. Section I. General provisions. II. Authorization. III. Powers. IV. Immunities. SECTION I. GENEBAL PBOTISIONS. Akticlb 159. "Consul" defined 58 160. Classes of consuls 58 SECTION II. AUTHOBIZATION OF CONSULS. Article 161. Duty of nations to receive consuls .' 60 OJF THE CONTENTS. 11 raffe Article 162. Exclusion of consuls 60 163. Forbidding consuls to engage in business 61 164. Appointment of subordinates 61 165. Commission required 61 166. Formal act of permission required 61 167. Exception as to temporary consuls 63 168. Notifying appointment to local authorities 63 169. Notifying permission 63 SECTION III. POWEKS OF CONSULS. Aeticle 170. Powers conferred or defined by ttis Code 63 171. Protection of members of friendly nation 64 173. Non-contentious jurisdiction 64 173. Other powers may be conferred 66 1 74. Certified copies of consular acts , 67 175. Authority presumed 68 176. Protection of rights, and complaints against wrongs. . 68 177. Diplomatic character 69 178. Termination of powers 69 179. Powers not terminated by change of government 70 SECTION IV. IMMUNITIES OF CONSULS. Article 180. Eight of passage 72 181. Immunities of consuls 73 182. Duty as witnesses 74 183. Books, papers, &c., not to be seized 75 184. Dwelling and office inviolable 76 185. General subjection to local law 76 CHAPTER XIV. COMMISSIONBES. Abticlb 186. Commissioners 77 187. Immunities of commissioners 77 TITLE IV. INTERNATIONAL COMPACTS. Chapter XV. Treaties. XVI. Informal Compacts. CHAPTER XV. treaties. Artickb 188. " Treaty " defined 78 189. Capacity to conclude treaty 79 190. Consent, how communicated "9 13 ANALYSIS Page- Aktiolb 191. Treaty by state in revolution ^9^ 192. Ratification, wlien necessary 80 193. Ratification, when obligatory 80' 194. Notice of reasons of refusal to ratify 81 195. Treaty negotiated contrary to minister's full power. . . 81 196, 197. Time of taking effect 81 198. Treaty interfering with third party 81 199. What provisions of this Code may be modified by special treaty 83 200. Demand of performance, when necessary 83 201. Merger of preceding communications 83 202. Extinguishment of obligations created by treaty 82 CHAPTER XVI. INFOBMAL COMPACTS. Aeticle 303.. Informal compacts may be made 83 304. Ratification of written compacts made by unauthorized agents 83 TITLE V. KEMOTAL OP PERSONS. OhAPTEB XVII. ASYLTJM. XVIII. Exteadition. CHAPTER XVII. ASYLUM. Akticlb 205. Right of asylum 84 306. Exclusion of criminals §5 307. Abuse of asylum 86 308. Return 88 309. Obtrusion of convicts, paupers, &c 88 CHAPTER XVIIL exteadition. Sectiott I. Extradition of criminals. II. Of Deserters. SECTION 1. EXTEADITION OP CRIMINALS. Article 310. Duty of extradition 93 311. The requisition 93 313. Requisition in case of ofiense committed on the frontier 94 213. Requisition in case of offense within a colony 94 314. What criminals are subject to extradition 94 315. Exception of certain offenses 108 OF THE CONTENTS. 13 Page Akticlk 316. Order of arrest 110 317. Arrest, in anticipation of requisition 113 318. Preliminary investigation. . : 113 319. Rules for conducting investigation 114 330. Documentary evidence 115 331. Necessary proof of guilt 117 833. Evidence in case of convicted criminals 118 333. Inquiry as to real motive of demand 118 334. Conflicting claims 119 335. Surrender, of those under arrest for local ofEenses, may be deferred 119 236. Surrender, notwitlistanding civil arrest 119 327. Conditional extradition 130 238. Member of a third nation 130 339. Surrender, by whom made 130 '330. Surrender, in case of oiiense committed on the frontier 131 331. Surrender by colonial government 131 333. Things in prisoner's possession 121 233. Second arrest 123 ■234. Custody of the prisoner 122 ■335. Discharge in case of delay of extradition 123 336. Limitations of time extended in certain cases 132 387. Restrictions as to punishment 123 238. Necessary legislation to be provided 123 SECTION II. EXTKADITION OP DBSEETBES. Aetici.k 339. Marine deserters only intended 124 240. " Desertion" defined 124 241. Local tribunals to order arrest of foreign deserters. . . 125 342. Application for extradition, how made 125 243. Capture and imprisonment 126 344. Deserters to be sent back 136 345. Limit of imprisonment 136 346. Delay of extradition for punishment of offense 137 PART II. THE RELATIONS OF A NATION TO THE PERSONS AND PROPERTY OP THE MEMBERS OF OTHER NATIONS. Title VI. National Chakactek. VII. DOMICIL. VIII. National Jtieisdiction. IX. Duties oi" a Nation to Poebignbbs. X. Duties op Foebignees to the Nation. B 14 ANALYSIS TITLE VI. NATIONAIj CHAEACTBK. Chapter XIX. Of Pbksonb. XX. Of Shijppino. CHAPTER XIX. NATIONAL CHABACTBK OF PBKSONS. Section I. General provisions. II. Allegiance. III. Expatriation. rV. Naturalization. SECTION I. GENEBAL PBOYISIONS. Page Abticle 347. " National character" defined 129 848. Every person lias one national cLaracter 129 249. Effect of marriage 132 250. Legitimate child of a member of the nation 132 251. Legitimate child of a foreigner 132 252. Illegitimate children 133 253. Effect of recognition 133 254. Mode of recognition 138 255. Illegitimate child born abroad 134 256. Parents of unknown national character 134 357. Presumption of membership 134 258. Change of national character 135 259. Political privileges unaffected by marriage 135 260. Effect of marriage and removal 185 SECTION II. ALLEGIANCE. Abticle 261. " Allegiance " defined 136 263. Extinguishment of allegiance 136 263. Renewal of allegiance 137 SECTION III. expatbiation. Abticle 264. " Expatriation'' defined 137 265. Intent ; ^ 137 266. Expatriation a right 137 367. Effect of expatriation 188 SECTION IV. NATUBALIZATION. Abticle 268. " Naturalization" defined 138 269. Naturalization not obligatory 189 270. Effect of naturalization 139 OF THE CONTKITTS. 15 Page Article 271. Absentees can not be naturalized 139 273. Liability to justice on return 140 CHAPTER XX. NATIONAL CHABACTBK OF SHIPPING. Article 273. Every ship has one national character 142 274. Origin of national character. , 142 275. Change of national character 142 276. Registry 148 277. Passport required 143 . 278. Contents of passport 143 279. Effect of ship's passport 144 TITLE VII. DOMICIL. Chaptbb. XXI. DoMiciti, Original and Secondary. XXII. Change of Domicil. XXIII. Effect op Change of Domicil. CHAPTER XXI. domicil, original and sbcondaet. Article 280. " Domicil " defined 146 281. Kinds of domicil 147 282. Original and secondary 147 283. Derivative and voluntary 147 284. Every person has one domicil 147 285. Original domicil of legitimates 148 286. Original domicil of illegitimates 148 287. Child of unknown parentage 148 288. Continuance of domicil 148 289. Wife's secondary domicil 149 290. Child's secondary domicil 150 291. Ward's secondary domicil 151 292. Domicil of insane persons, &c 151 CHAPTER XXII. change of domtcil. Article 293. Right to change domicil 152 294. Change of an adult's derivative domicil 152 295. Guardian may change ward's domicil 153 296. Parent's consent to change necessary 152 397. Testamentary change of derivative domicil 153 298. Change of domicil, how made 153 299. Intention to change 153 16 ANALYSIS Page Article 300. Presumption of no intention to change 154 301. Reverting to original domicil 155 303. Official or compulsory change of residence 155 303. What law determines change of domicil 156 304. Nationality not affected 158 CHAPTER XXIII. EFFECT OF CHANGE. OF DOMICIL. Akticle 305. Change not retroactive 158 306. Law of new domicil applies 158 TITLE VIII. national jurisdiction. Article 307. " Jurisdiction" defined 159 308. Territorial jurisdiction 159 309. Extra-territorial jurisdiction 159 310. " Law of place" defined 160 311. 'Conflict of concurrent jurisdiction . 161 313. Subjects of jurisdiction 161 813. Limits of exercise as to foreigners 161 314. Foreign military and naval forces ., 161 TITLE IX. DUTIES OF A NATION TO PORBIGNEKS. ■Chapter XXIV. Personal Condition of Foreigners. XXV. Personal Rights. XXVI. Rights of Property. XXVII. Wrecks. > CHAPTER XXIV. personal condition of foreigners. Article 315. Who are foreigners 163 316. Laws of a nation are applicable to foreigners 163 317. Duty to administer justice 163 CHAPTER XXV. PERSONAL rights OF FOREIGNERS. Section I. Rights of residence. II. Of occupation. III. Of religion. OF THE CONTENTS. 17 SECTION I. RIGHTS OP KESIDBNCB. Page ABTiciiB 318. Commercial intercourse 163 319. Free entry of foreigners 104 380. TrafBc in laborers 164. 331. Exclusion 165 333. Passports and safe conducts 160 383. EflFect of safe conduct 160 384. Effect of passport 167 335. Passports not to be required 167 336. Armed expeditious , 167 337. Searches and seizures 168 338. Unusual burdens not to be imposed 168 339. Removal 169 SECTION 1 1 '. BIGHTS OF OCCUPATION. Article 330. Commercial occupations. 169 331. Vocations generally 17] SECTION III . RIGHTS OF RELIGION. Article 338. Freedom of conscience 171 333. Sepulture 173 CHAPTER XXVI. RIGHTS OF PROPERTY. Article 334. Foreigners enabled to enjoy property 174 335. Foreigners enabled to transmit property 176 336. Right to remove property 176 337. Absentee of heirs 176 338. Death of persons who are foreigners or not domiciled. 177 339. Consul may send home assets of seamen, &c 178 340. Consul entitled to administer 179 341. Security not required. 183 343. Local authorities to administer in absence of consul, and all other authorized persons 182 343. Notice to be given of successions in which foreigners are interested 183 344. Secretary of legation to act if there be no consul 183 CHAPTER XXVII. WRECKS. Article 345. Duty of a nation to succor and protect 184 346. Notice of wreck to consul of the ship's nation 186 347. Power of consul or local authorities over wrecks 186 348. Interference of local authorities restricted 187 349. Property exempt from duties 187 18 ANALYSIS Pag9 ABTIca,B 350. Local charges restricted 187. 351. Authorizing sale of wrecked property 187 353. Ancient rule of wreck abolished ,. . .. 188 353. Property to be restored to owner 188 854. Duty of nation to provide for care of wrecked prop- erty 189 355. Official sales 189 TITLE X . DUTIES Off FOKBIGNEBS TO THE NATIOK. Chapter XXVIII. Subjection to the Laws. XXIX. Civil and Militaey Service. XXX. Taxation. CHAPTER XXVIII. SUBJECTION TO THE LAWS. Abticlb 356. Subjection to the laws 190 CHAPTER XXIX civil and military sbbvicb. Article 357. Civil service 190 358. Military service 191 CHAPTER XXX. taxation. Article 359. Jurisdiction to tax 193 360. Taxes on the person l93 361. Equality of taxes 193 363. Corporations 193 363. Shipping I94 364. Property in transit 194 865. Debts and evidences of debt I94 366. Commercial paper I95 367. No nation to tax national obligations of another 195 OF THE CONTEJSrTS. 19 PAET in. UNIFORM REGULATIONS FOR MUTUAL CONVENIENCE. Title XI. Shipping. XII. Imposts. XIII. Qtjakantine. XIV. Railways. XV. Tblegb.vphs. XVI. Postal Seeyicb. XVII. Patents. XVIII. Tbadrmarks. XIX. COPYMGHTS. XX. Monet. XXI. Weights and Measttres. XXII. Longitude and Time. XXIII. Sk.a. Signals. TITLE XI. shipping. Chapteb XXXI. General Protisions. XXXII. Rules of Xatigation. [Law of the Road at Sea.] XXXIII. Collision. XXXIV. Average. XXXV. Salvage. CHAPTER XXXI. GENERAL PROTISIONS. Page Article 868. Definition of " ship " 197 369. " Appurtenances " defined 197 370. Employment of ships ' 197 :!71. Foreign navigation 19S 373. Domestic navigation 198 378. Foreign and domestic ships distinguished 198 374. Owner for the voyage 198 875. Registry, enrollment and license 199 376. Valueofship 199 376a. Responsibility, if death ensue 199 376b. Who presumed in fault 199 20 ANALYSIS CHAPTER XXXII. KTJLBS OF NATIGATIOSr. [LAW OF THE KG AD AT SEA.] Page Abticlb 877. Law of the road at sea 300 RlTLB 1. Steam and sail 201 3. Night lights 301 3. Lights for sea-going steamships 301 4. Lights for steam-tugs 203 5. Lights for sailing ships 303 6. Exceptional lights for small sailing ships.. . 303 7. Lights for ships at anchor 204 8. Lights for pilot vessels 204 9 Lights for fishing vessels and boats 204 10. Fog signals 305 11. Two sailing ships, or two ships under steam, meeting 205 13. Two sailing ships crossing 307 14. Two ships under steam crossing 307 15. Sailing ship and ship under steam 308 16. Ship under steam to slacken speed 208 17. Sliips overtaking other ships 308 18. Construction of preceding rules 308 19. Proviso to save special cases 309 30. No ship under any circumstances to neglect proper precautions 309 378. Duty of succor 309 CHAPTER XXXIII. COLLISION. Article 379. Loss, how apportioned 310 380. Faults of navigation 311 381. Who liable 313 383. Personal liability of wrong-doer ai3 383. Compulsory pilotage 2i3 CHAPTER XXXIV. GBNBEAL AVERAGE. Article 384. Jettison '314 385. Order of jettison 314 386. By whom made 314 387. General average 215 388. Loss, how borne 315 389. Loss, how adjusted 21q 390. Consular power gig 391. Jettison of deck cargo 217 393. Damage by water and breakage 318 393. Extinguishing fire on shipboard 318 394. Cutting away wreck 218 395. Voluntary stranding yjg OF THE CONTENTS. 21 Page Article 396. Carrying a press of sail 319 397. Port of refuge expenses 319 398. Wages and maintenance of crew in port of refuge. . . . 330 399. Damage to cargo in discharging 330 400, 401. .Contributory values 331 CHAPTER XXXV. SALVAGE. . ABTICLE403. When allowed 333 403. Officers, seamen and pilots 324 404. Forfeiture of safvage ■ 335 405. Special contract 336 406. Amount, how fixed 326 407. Apportionnuent between several salvors 237 TITLE XII. IMPOSTS. Article 408. Equality in foreign commerce and navigation 328 409. No unfavorable discriminations on account of national character or origin 339 410. Restrictions on examination of cargo and charges. . . . 334 411. Ships exempt from tonnage dues 385 413. What acts not to be considered acts of commerce 336 413. Computation of tonnage 336 414. Exception as to fisheries, coasting trade and internal navigation 336 415. Commercial travellers 337 416. Duty on samples 338 TITLE XIII. QXTABANTINE. Article 417. Quarantine 339 418. For what diseases quarantine may be imposed 339 419. Detention of ships 239 430. Ships may put to sea, when 340 431. Limit of quarantine 340 433. Regulations 240 22 ANALYSIS TITLE XIV. RAILWAYS. p^gg ABTICLE423. Line between frontier stations an international route . 241 243 424. Equal facilities to members of any nation . ._. 241 425. Freedom of traffic 426. Eevenue service • • ■ ■ 427. Offenders against either nation not to be employed by . 244 the other 428. Goods carried in passenger trains • ■ • ■ 429. Transit of merchandise through intermediate nation.. 244 245 TITLE XV. TELEGRAPHS. Abticlb 430. Free communication allowed 246 431. Bight of correspondence 247 432. Classification of dispatches 247 433. Dispatches of State 247 434. Authentication of dispatches of State 347 435. Authentication of private dispatches 348 436. Language of dispatches 248 437. Dispatches in cypher 248 438, 439. Preference of dispatches 248 440. Designation of route 249 441. Government scrutiny relinquished 249 442. Illegal dispatches 249 443. Suspension of service 249 444. Sending false dispatches ; violating dispatches, &c. . . 250 445. Regulations ^ . . . ; 250 TITLE XVI. POSTAl SBUTICE. CHAPTBK XXXVI. COKREBPOHDENCB. XXXVII. Postal Money Obdbks. Chapter xxxvi. cokkespondbncb. Article 446. Exchange of correspondence 252 447. Classes of correspondence 252 448. Rates of postage on letters 253 449. Rates on other postal packets 353 OF THE CONTENTS. 23 Page Akticlm 450. Registered correspondence 253 451. Prepayment required 254 452. Interior postage 254 453. Certain ofHcial correspondence free 255 454". Accounts 255 455. Right of transit 255 456. Relations with otlier countries 257 457. Domestic regulations 257 458. Internal regulations 258 459. Central office 258 460. Arbitration in case of disagreement 258 461. Conference every three years 259 462. Free entry and departure of mail ships 259 463. Private mails forbidden 359 464. Dangerous substances 359 465. Transit of closed mails through each nation , 359 466. Mail matter not to be detained . 360 467 Letters with cpntraband goods 860 468. Violations of the mails 260 CHAPTER XXXVII. POSTAL MONET OKDEKS. AbtiCLE 469. International postal money orders 265 470. Money order offices 265 471. Language 266 472. Charges 266 473. Gold basis 266 474. Indorsement 367 475. Unclaimed money 367 476. Settlement of accounts 267 TITLE XVII. PATENTS. Article 477. Protection of patents 268 TITLE XVIII. tkadbmabks. Article 478. What may be appropriated 269 479. Exceptions 271 480. Registry of foreign trademarks 871 24 ANALYSIS Page Article 481. Declaration 373 483. OflBces where registry is to be made 373 483. Equal privileges of foreigners 373 TITLE X.IX. COPYRIGHTS. Article 484. Ownership of products of the mind 375- 485. Transfer 376 486. Subsequent inventor, author, &c 376 487. Private writings 376 488. Correspondence addressed to public oflBcies 377 489. Eight of protection 377 490. Extent of protection 377 491. Translations ._ 379' 493. Extracts from newspapers and periodicals 380 493. Power to prohi bit works .. .' 380 494. Saving clause as to existing works 380' TITLE XX. MONEY. Article 495. Adjustment of accounts between nations, and between members of different nations 381 496. The money of account to follow the law of decimal subdivision 381 497. Gold to be the standard 283^ 498. The standard of fineness prescribed 283 499. Definition of the money unit 384 500. What gold coins shall be legal tender 391 501. Silver coinage 293 503. What silver coins shall be legal tender, and to what extent 293 503. Limits of variation from standard weight or fineness within which coins shall be current 393 504. Standard weights 294 505. Scrutiny of the coinage 295 506. Coins may be called in by proclamation 295 507. XJncurrent coins may be destroyed 396 608. Coins of base metal not to form a part of the interna- tional currency ggg; OF THE CONTENTS. 25 TITLE XXI . ■VTBIGHTS AND MBASUEBS. Page AbtiCLE 509. The metric system of Tveiglits and measures adopted for international purposes 345 510. The metric system to be employed in negotiations and intercourse between governments 347 511. Customs duties to be levied by metric weight and measure, and postal tariffs to be regulated by metric weight 347 512. Standard units of length and of weight 348 ' 513. Copies of the standards to be made and carefully pre- served, as standards of verification 348 514. Working standards, or standards for daily use, to be constructed and periodically verified 348 515. Standard measures of capacity '. . . 349 516. Certain denominations, not decimally related to the units of length, capacity, surface and weight, to be allowed 349 TITLE XXII. LONGITUBB AND TIME. Akticle 517. The meridian of Greenwich to be the prime meridian . 355 518. Maps, charts, nautical tables, &c., how to be prepared. 356 519. Public vessels to be furuished with tables and charts conformed to the meridian of Greenwich, and re- quired to keep their logs in accordance therewith. . 356 520. The Gregorian style of reckoning to be employed 357 521. Of the length of the year, and of leap years 357 522. The term " year" in contracts and written instruments, .ho w to be understood 359 523. Divisions of the year 359 524. The day defined 3G0 TITLE XXIII. SEA SIGNALS. Abticle 525. A signal code to be devised by an international com- mittee 362 526. The use of the international signal code to be en- joined upon all ships, for all communications by signal, except such as may be of a confidential nature 362 537. Apparatus and printed instructions required for the use of the international signal code to be provided . 362 26 ASTALXSIS P-AET IV. PROVISIONS FOR THE PRESERVATION OF PEACE. P»ge Akticlb 538. Limit of permanent military force 367 539. Equipments and military reserves 368 530. " Time of peace " defined 369 531. When militia may be called out. 369 533. Notice of dissatisfaction and claim of redress 369 533. Answer to be given 369 534. Joint High Commission 369 535. High Tribunal of Arbitration 370 536. Each nation bound by High Tribunal of Arbitration . . 370 537. Nations violating provisions to be resisted by all 371 538. Annual conference of representatives of nations 371 538 a. Neutrality of inter-oceanic canal 373 DIVISION SECOND. PRIVATE INTERNATIONAL LAW. Pakt V. Privatb Rights. VI. Administeation op Justice. PART V. PRIVATE RIGHTS. TiTLB XXIV. Condition op Persons. XXV. Property. XXVI. Obligations. TITLE XXIV. condition op persons. Chapter XXXVIII. General Proyisions. XXXIX. Marriage. XL. Guardianship and Mental Alienatiok. CHAPTER XXXVIII. GENERAL PROVISIONS, AKTICLE539. Liberty g^i^ 540. Foreign slaves become free by entering free nation. . . . 377 OF THE CONTENTS. 27 Page Article 541. Rank and social condition. . .' 377 542. Personal capacity 378 543. Exception 880 544. Personal capacity as to immovables 381 545. Corporate capacity 381 CHAPTER XXXIX. MAKKIAGB. Article 546. " Marriage " defined 383 547. Valid foreign marriages 383 548. Void marriages 385 549. Capacity and consent 385 .')50. Requisite forms 386 551. Public ministers and consuls may solemnize mar- riages 386 552. Criminal offenses ;\ . . . 387 558. Evasion of home law 387 554. Personal, marital and parental rights 387 555. Polygamy 888 556. Legitimacy 388 CHAPTER XL. GUABDIANSHIP AND MENTAL ALIENATION. Article 557. Natural and testamentary guardians 389 558. Judicially appointed guardians 389 559. Sanity '. 298 TITLE XXV. property. Chapter XLI. General Provisions. XLIl. Transfer. XLIII. Succession. XLIV. Will. CHAPTER XLI. GENERAL PROVISIONS. Article 560. Property defined 893 561. What things are property 394 562. Wild animals 394 568. Real and personal property 394 564. Real property 394 565. Land 394 566. Fixtures 395 567. Appurtenances 395 568. Personal property 395 28 ANALYSIS Page- Articm; 569. Property in possession, or in action o"5 570. Law of immovables 39^ 571. Law of movables 396 573. Localcharacterof public funds, and corporate shares. 398 573. Local character of shipping 399 574. Effect of matrimonial settlement 399 575. Rights of property of persons married without a settle- ment 400 576. Matrimonial property after change of domicil 400 577. " Matrimonial domicil " defined 400' 578. Abandonment 400' CHAPTER XLII. TRANSrBK. Article 579. ' ' Transfer " defined 401 580. Voluntary transfer 401 581. Validity of transfers 401 583. Jurisdiction over movables 401 588. Protection of creditors; 403 CHAPTER XLIII. SUCCESSION. AKTIOLE 584. " Succession " defined 40S 585. Law governing succession to movables 404 586. Law governing succession to immovables 40.5- 587. Rights of succession, when not affected by foreign character of property 405 588. Incidents of local burdens 406 589. Failure of heritable blood 406 CHAPTER XLIV. WILL. Article 590. " Will "defined 406. 591. Will of movables 406 593. Testamentary capacity as to movables 408 593. Qualification of preceding Articles 408 594. Testamentary capacity as to immovables 408 595. Probate, when necessary 408 596. Construction or interpretation of will 409' TITLE XXVI. obligations. Chapter XLV. Obligations in General. XLVI. Contracts. XLV II. Obligations Imposed by Law. OP THE CONTKNTS. 29 CHAPTER XLV. OBLIGATIONS IN GBNBRAI,. Page Ahtiolb 597. " Obligation " defined 410 598. Obligation, how created 410 599. When an obligation accrues 410 600. Certain contracts excepted 410 CHAPTER XLVI. CONTBACTS. Section I. Law of place. II. Place of making contract. III. Formalities. SECTION I. liA'W OF PLACE. Article 601. Contracts made and performed in same nation 411 602. Contracts made and performed in different nations 413 603. Law governing interpretation of contract 413 604, 605. Illegality of contract. 415, 416 606. Mode of charging parties to negotiable instrument 416 section' II. PLACE OF MAKING CONTRACT. .Article 607. " Place of making contract " defined 417 608. Contract made by several parties in diflerent places. .. 418 609. Special agreement as to place of consummating con- tract 419 610. Presumed place of making contract 419 611. Implied contracts 419 613. Presumption as to place of indorsement of negotiable paper 419 613. Estoppel 430 SECTIONIII. FORMALITIES. .Article 614. What law determines the existence of contract 430 61.5. Several parties 431 CHAPTER XLVII. obligations IMPOSED BY LAW. -iRTiCLB.i616. Prohibited acts 431 617. Performance or omission of acts beyond jurisdiction of nation 423 618. Performance or omission of acts authorized by law. . . 433 619. Ownership and possession of property 433 630. Law governing damages caused by act or omission be- yond the jurisdiction of nation 433 C 30 ANALYSIS Article 630a. 620b. 630c. 630d. 630e. 620f. 620g. 63011. 620i. 630j. 630k. 6301. 630m. 630ii. 630o. 636p. 630q. 630r. 630b. 630t. 620u. 620 V. 620w. 620x. 630y. 630z.- 620al. 620bl. 630cl. 630dl. 620el. 620fl. 620gl. 630hl. 620il. 630J1. CHAPTER XLVIIA. INTEENATIONAL BILLS OP EXCHANGE. * ^ Definition of bills of exchange 423b Who is indorser 433c Indorsement, general or special 433c General indorsement, how made special 433c What indorser -warrants, 433c How indorsement qualified 432d Eights of indorsee. . 423d Want of consideration, when it does not exoner- ate 423d Who is indorsee in due course 422d Title of indorsee in due course 423d Apparent maturity 433e The same 432e Presentment for acceptance, when 432e Neglect to present for acceptance excuses drawer and indorsers, when 482e Days of grace not allowed 422e Bill, where payable 422e Bill accepted payable at particular place, to be there presented for payment 423f Bill in different parts 433f Agreement to draw requires drawing in three parts 433f Presentment, acceptance, or payment of one, good for all 433f Presentment for acceptance or payment, how made .' 433f Presentment to one drawee sufficient for all. . . . 433g Bill which specifies drawee in case of need, must be presented to him 433g Bill not drawing interest and not presented in certain time, parties exonerated 433g Bill bearing interest, delay does not exonerate.. . 432g Presentment for acceptance excused, when 423g Delay in presenting excused, when 423h Presentment and notice excused, when 433h Presentment excused, when 432h Delay in presentment excused, when 483h Waiver of presentment and of notice, efiect of.. . 433h Acceptance to be in writing 422h If written acceptance refused, bill dishonored. . . . 4231 What may be treated as sufficient acceptance. . . 433i Acceptance on separate instrument, how far bind- ing 432i Unconditional promise to accept sufficient, when 433i OF THE CONTENTS. 31 Page 620kl. When acceptor may cancel acceptance 4381 62011. What acceptance admits. 422j 620ml. What may be demanded as condition of payment 422j 620nl. When is bill dishonored? 422j 620ol. Notice of dishonor, by whom given 422] 620pl. Notice of dishonor, form of it 422k 620ql. Protest, by whom made 422k 620rl. Protest, where made 432k 620sl. Protest, when made 432k 630tl. Want of protest, when excused 433k 620ul. If bill waives protest, what to be done 4221 620vl. Notice of dishonor, how given. 4321 620wl. Notice, how given in case of death 4221 630x1. The same 4321 620yl. Notice of dishonor, when given 432m 620zl. If sent by post, when deposited in post-oflBce... . 433m 620a3. Notice by agent, when given 433m 630b3. Party receiving notice, when to give notice to prior parties 422m 620c3. Notice of dishonor by one party good for others. 422n 620d2. When notice of dishonor is excused 433n 620e2. When dishonored bill may be paid for honor. . . . 422n 620f3. Holder bound to accept payment, not acceptance for honor 432n 630g3. Payer for honor, what to declare 432n 620h2. What acceptor or payer for honor must do 422o 630i2. Bill accepted for honor must be presented for payment 422o 630J3. Acceptance for honor does not dispense with no- tice of dishonor 422o 620k3. Bill not accepted, must be presented for payment 422o 62012. Damages allowed , 422o 620m3. Damages, how estimated 422p P AET VI. ADMINISTRATION OF JUSTICE. TiTLB XXVII. Jttdiciai, Power. XXVIII. Procbditee. XXIX. Evidence. XXX. BiTBCT OP Judgments. XXXI. EiTLES Applicable to Particular Subjects. 32 ANALTSIS TITLE XXVII. JTJDICIAL POVeK. Chapter XL VIII. In Civil Casks. XLIX. In Ckiminal Cases. CHAPTER XLVIII. JUDICIAL POWEE IN CIVIL CASES. Page Akticlb 621, 633. Remedial justice 434, 425 623. When exercise of Jurisdiction may be declined . . . 436 634, 625. Extra-judicial power 426 636. Pursuit of inmate of foreign ship upon the high seas, for crime, prohibited 436 637. Limit of judicial power as to absent persons 437 638. Party to the record 437 639. Limit of judicial power as to property abroad 428 680. Voluntary appearance 428 631. Effect of judgment by jurisdiction acquired over property 438 633. Effect of judgment by jurisdiction acquired over person 439 633, 634. Guardianship '439 635. Forfeiture 439 636. Actions concerning immovable property 430 637. Foreign governments and their representatives.'. . 430 638. Public property of one nation within the territory of another 430 639. Power of consul to appear for member of his na- tion 431 640. Judicial power of consuls 431 CHAPTER XLIX. JUDICIAL POWEK IN CRIMINAL CASES. Article 641. Criminal jurisdiction of a nation over its own mem- bers 433 643, 643, 644. Criminal jurisdiction of a, nation over foreign- ers 433,434,435 645. Torts against immigrants by carriers 435 646. Conspiracies against foreign nation 435 647. Limit of punishment of foreigners 43,5 648. Punishment on foreign private ships 435 649. Foreigners within a nation without their consent 436 650. Pirates subject to the criminal jurisdiction of all na- tions 436 OF THE CONTENTS. 33 TITLE XXVIII, PROCBDtTRB. Page Akticlb 651, 653. Law of the forum 437, 438 633, 654. Measure of damages 438 655. Absence of proof of foreign law 439 TITLE XXIX. EVIDENCE. Article 656. Admissibility and effect of evidence 440 657, 658. Notary's certificate 440 659. Evidence of foreign laws 441 660. Record, how authenticated 443 661. Oral evidence of foreign record 443 663. Manner of proving other oflBcial documents 443 663. Contents of official certificates 443 664. Taking foreign testimony 443 665. Form of oath or affirmation 444 TITLE XXX. EFFECT OF JUDGMENTS. Article 666. Force of public or judicial acts 445 667. Effect of foreign judgments 445 668. Impeachment of foreign judgment 446 669. Foreign judgment, forbidden to be enforced 447 670. Consent to execution of foreign judgment 447 671. Judgment in rem 447 673. Judgment aa to status of a person 447 678. Effect of foreign judgments of divorce, insolvency and succession 447 TITLE XXXI. kules applicable to pakticulak sttbjects. Chapter L. Divorce. LI. Bankruptcy and Insolvency. LII. Estates of Decedents. 'LIII. Admiralty. 34 ANALYSIS CHAPTER L. DITOKCE. Page Article 674. Power of divorce 452 675. Jurisdiction unaffected by change of domicil 453 676. The domicil required for jurisdiction 453 677. Judgment of divorce for defendant 453 678. Judgment of divorce everywhere valid 453 679. Sufficiency of cause of divorce 458 680. Evasion of law 454 681. Obligations 454 682. Disabilities 454 683. " Divorce " deBned 455 CHAPTER LI. BAKKRUPTCT AND INSOLVENCY. Article 684. Validity of discharge 456 685. Transfer of property. 456 686. Judgment of bankruptcy without transfer of property 457 CHAPTER LII. ESTATES OF DECEDENTS. Article 687. Jurisdiction to grant administration. 457 688. Limit of administration 458 689. Local nature of power of administration 459 690. Actions by foreign personal representative 459 691. Principal and ancillary administrations 459 692. Title to movables 459 693. Ancillary representative 460 694. Course of administration 460 695. Application of property to payment of decedent's debts 460 696. Actions against foreign personal representative 461 697. When judgment of Probate Court, as to right of suc- cession, is conclusive 461 698. Probate of will of property in foreign country 461 CHAPTER LIII. ADMIRALTY. Article 699. Extent of admiralty jurisdiction of a nation 462 700. " Seas" defined 462 701. Rules of decision in extra-territorial torts 463 702, 702a, 702b. Uniform procedure in admiralty 463 BOOK SECOND. WAR. Division Thied. Belligekekts. FoTiBTH. Allies. Fifth. Neutrals. DIVISION THIRD, BELLIGERENTS. Part VII. The Commencement of War. VIII. The Conduct of War. IX. The Termination op War. PART VII. THE COMMENCEMENT OF WAR. Page Article 703. Provisions of Book on Peace continue in force except as modified 467 704. "War"defined 467 705. Nations, &c., are the only parties 468 706. Civil war 469 707. Insurgents may be treated as belligerents 469 708. Insurgents may be recognized by foreign nations. . . . 469 709. Declaration of war 470 710. Response unnecessary 471 711. " Reprisal " defined 471 712. Negative reprisal 47'2 718. Positive reprisal 472 714. Positive reprisal treated as declaration of war 473 715. Hostilities before declaration 47;> 716. Positive reprisal in violation of jirovisions for preser- vation of peace 473 36 ANALYSIS PART VIII. THE CONDUCT OF WAR. Title XXXII. Militaky AtjthOhity. XXXIII. Hostilities. TITLE XXXII. militaet authority. Chapter LIV. Military Law. LV. Martial Rule. LVI. Military Occupation. CHAPTER LIV. MILITARY LA"W. Page Article 717. " Military " defined 474 718. " Military law " defined 475 719. Jurisdiction of military tribunals over foreigners 475 730. Mutilation 475 731. Violations of provisions of the Code for protection of enemies or neutrals 476 733. Indemnity for excesses 476 733. Justification for violation of provisions of the Code for protection of enemies or neutrals 476 CHAPTER LV. MARTIAL RULE. ARTICLE 734. Martial rule and its effect 477 735. Martial rule needs no proclamation 480 736. Consuls 481 737. Duty of magistrates and civil oflBcers 481 CHAPTER LVI. MILITARY OCCUPATION. Article 738. " Military occupation " defined 483 729. Allegiance suspended by military occupation 483 730. Limit of power of belligerent 483 731. Civil and criminal law within military occupation. . . . 488 733. Persons held to service or labor 483 733. Effect of reconq^nest on civil and political rights 484 OF THE CONTENTS. 37 TITLE XXXIII. hostilities. Chapteb LVII. Who mat wage Hostilities. LVIII. Against whom Hostilities mat be -waged. LIX. The Instruments and Modes os* Hostilities. LX. Teuce and Aemisticb. LXI. Medical Sekviob. LXII. Religious Seevice. LXIII. Pbisonees. LXIV. Hostilities against Propertt. LXV. Contraband of War. LXVI. Visitation, Search and Capture. LXVII. Blockade. LXVIII. Prize. LXIX. Effect of a state of War on Obligations of Nations and their Members. LXX. Effect of a state of War upon Intercourse. LXXI. Effect op a state of War upon the Adminis- tration OF Justice. CHAPTER LVII. WHO MAT "WAGE HOSTILITIES. Page Article 734, 735. Authority to commit hostilities 485, 486 736. Persons impressed with military character 487 737. Temporary ivant of authority 487 738. Compulsory service 488 739. Savage allies 488 740. Defensive hostilities 489 741. Privateering abolished 489 742. Punishment of privateering 490 743. Pirates and brigands 490 CHAPTER LVIII. AGAINST WHOM HOSTILITIES MAT BE WAGED. Article 744. " Enemy " defined 491 745. Individual enemies 492 746. " Active enemies " defined 492 747. " Passive enemies " defined 492 748. Active enemies resisting with arms 493 749. Non-combatants 493 750. Passive enemies are inviolable 493 751. Passive enemies, sick and wounded leaving armed place 494 753. Disarming places 494 758. Persons communicating with the enemy 494 38 ANALYSIS CHAPTEE I. IX. THE IHSTBUMBKTS AND MODES OF HOBTILITIBS. Page Article 754. Unlawful weapons 496 755. Priv.ate gratification forbidden 497 756. "Unlawful hostilities 497 757. Notice of bombardment 499 758. Betaliation, wben allowed 499 759. Mode of retaliation not to be barbarous 500 760. Passive or disabled enemies and prisoners 500 761. Bribery and intrigue 500 763. Good faith in keeping engagements 501 763. " Stratagems " defined 501 764. Unlawful stratagems 501 765. Lawful stratagems 503 766. Piratical use of false colors, &c 503 767. " Spies " defined 503 768. Employment and punishment of spies 504 769. Guides 504 770. Punishment of guides 504 771. Solicitation of desertion unlawful 504 773. Enlistment of deserters no protection from punish- ment 50o CHAPTER LX. TRUCE AND ARMISTICE. ArticIiB 773. " Truce " and ' ' armistice " defined 505 774. Authority to make a truce 506 775. Authority to make armistice 506 776. Publication of truce 500 777. Interpretation 507 778. Effect of truce or armistice ; . . . . 507 779. Enforcing 508 780. Expiration 508 781. Unauthorized breach SO'* 782. Eecommencing hostilities 50!1 788. Flags of truce 509 784. EfEect of capitulatioii 509 CHAPTER LXI. MEDICAL SERVICE. Article 785. " Ambulances " and "hospitals" defined 510 786. Neutrality of ambulances and hospitals 510 787. Persons attached to ambulailces and hospitals 511 788. Hospital supplies 511 OF THE CONTENTS. 39 Pago Article 789. Exemption of private property and persons 511 790. No distinction to be made in succor 511 791.. Immediate exchange of sick and wounded 512 793. Prisoners incapacitated from future service 513 793. Other sick and wounded 512 794. Flag and badge 512 795. Hospital ships to be of white exterior with green ports 513 796. Eflfect of visitation of private ship used for sick and wounded 513 797. Belligerent's control of private ship used for sick and wounded 513 798. Voluntary societies for succor at sea 513 CHAPTEE LXII. RELIGIOUS SBBYICB. Article 799. Chaplains, &c., to be respected and protected 514 CHAPTER LXIII. PRISONERS. Article 800. The right to take prisoners 516 801. What persons may be taken prisoners 516 803. Persons not entitled to be treated as prisoners of war. 517 803. Messengers 5L7 804. Personal property of prisoners of war 518 805. Sums of money 518 806. Surrender of side-arms 518 807. Provision for maintenance of prisoners 518 808. Restraint 519 809. Rights of prisoner 519 810. When prisoners of war may be punished 519 811. Treason and other offenses committed in waging civil war ;... 519 813. Information 519 813. Deceit by prisoner 520 814. Compulsory labor ; . . . . 530 815. Subject to retaliatory measures 520 816. " Parole " defined 520 817. Parole 520 818. Forbidding parole 521 819. Extortion of parole by ill usage 522 830. Paroles to be reduced to writing 522 831. Obligation of a parole 532 833. Violation of parole : 522 833. Escapes 528 40 ANALTSIS Aeticle 824. " Hostage" defined 533 825. Treatment of hostages 533 826. Death of hostage 533 837. Cartels 524 838. Right of belligerent to retain prisoners 534 839. Manner of exchanging prisoners 524 830. Eansom 524 881. Cartel for exchange 534 832. Breach of cartel 525' 838. Cartel ships 525 834. Protection of cartel ships 525' CHAPTER LXIV. HOSTILITIES AGAINST PBOPEETT: Akticlk 835. . What property may be seized 533 836. What the belligerent may appropriate, and for what end 534 837. Destroying means of communication 53& 838. Destroying facilities of navigation 535 839. Ravaging or laying waste enemy's country 536 840. Property exempt from acts of hostilities 586> 841. Property exempt not to be sold or carried away 537 842. Use of and title to public iminovables 537 848. Title to movables '. : 588 844. Revenues held In trust for governing the country. . . . 538 845. Public ships surprised by war 539 846. Private property to be respected 539 847. Rescue 541 848. Effect of recapture of property of a neutral 543 849. Effect of recapture of property of a belligerent 543 850. Military burdens of "passive enemies 542 851. Compensation for property taken for military uses. . . . 543 CHAPTER LXV. CONTRABAND OY WAR. Article 853. Kinds of contraband 544 853. Contraband persons 545 854. Contraband ships 545 855. Contingent destination presumed to be hostile 546 856. Neutral and hostile destination 546. 857. Fraud and its effect 546 858. Destination of ship conclusive as to goods. 547 859. What goods are contraband 548 860. Goods on board ship exempt from capture 553 861. Contraband documents 553 OF THE CONTENTS. 41 Page Akticlb 863, Contents of mails not contraband gSi 863. Detention and confiscation of contraband 553 864. Freightage of contraband 555 CHAPTER LXVI. VISITATION, SBABCH AND CAPTUKE. Abticlb 865. Right of visitation 556 866. Ships under neutral convoy 557 867. Ships under hostile convoy 558 868. Duty of submission 558 869. Mode of visitation 559 870. Neither boat, persons nor papers to be taken from the ship 559 871. Resistance by force 559 872. Detention 560 873. What is proper evidence 560 874. Memorandum of visit to be indorsed on ship's papers. 561 875. Sending in for condemnation 561 876. Prize incapable of being sent in 563 877. Surrender of contraband of war 563 878. Detention of persons and papers 563 879. Detention in cases of suspicion 565 880. " Spoliation of papers " defined 567 881. Passive enemies or neutrals oh board captured ship. . 56T 883. Persons on board a captured armed public ship, or ship without colors 568 883. When ship and cargo must be released 568 884. Duty of prize officer , . -^ - . 568 885. Persons and things captured as contraband to be brought before a prize court 569 886. Restoration after unlawful capture 569 887, 888. Liability of commander. .* 570, 573 889. Eights of all ships to defend against attack 573 890. Salvage 573 CHAPTER LXVII. BLOCKADE. Article 891. Objects of blockade 573 893. " Military port " defined 573 CHAPTER LXVIII. prize. Ajrticlb 893. Prizesmust be brought in for adjudication 576 894. Possession necessary to jurisdiction 578 42 AKALTSIS Pnge Akticle 895. Adjudication 578 896. Title not divested until judgment 578 897. Previous liens 579 898. Requisites of judgment condemning prize 579 899. Capture by unlawful means 579 900. Jurisdiction of remedy against wrongdoer, in case of illegal capture • • 579 901. Trial of contraband persons 580 903. Uniform procedure 580 CHAPTER LXIX. EFFECT OF A STATE OF WAIl ON OBLIOATIONS OF NATIONS AND THEIK MEMBERS. Article 903. Existing obligations not in general affected 580 904. Public debt not confiscable 581 905. Treaties unaflected by war 581 906. Effect of war on executory contracts 583 907. Removal of interdiction 583 908. Anticipation of war 583 909. Extension of time 583 910. Interest, damages, &c., for delay 583 CHAPTER LXX. EFFECT OF A STATE OF WAR UPON INTBBCODBSB. Article 911. Diplomatic intercourse 584 913. Rights of public agents of neutral nation accredited to belligerent nation 585 913. Interdiction of entrance of foreigners 586 914. Interdiction of communication 586 915. Mail service 586 916. Foreigners, rights of residence and vocation 587 917. Safe conducts 589 918. Effect of safe conducts 589 919. Passports 59O 930. Interdiction of interior traffic 590 931. Intercourse across lines of military occupation 591 933. Private ships surprised by war , 593 933. Voyages commenced ; 593 934. Intercourse of active enemies 594 935. Intercourse subserving the purpose of the war 594 936. Lawful intercourse 594 937. Commencement and termination of illegality 596 938. Transfer of ships during war • 597 939. Penalty of illegal intercourse and traffic 598 OF THE CONTENTS. 43 CHAPTEK LXXI. EFFECT OP A STATE OF "WAR UPON THE ADMINISTEATION OF JUSTICE. Page Akticle 930. Suspension of remedies 599 931. Private rights protected 599 933. No civil remedy against lawful hostilities 600 933. Prescriptions and statutes of limitations 600 934. The same ; in case of civil war.- , 601 985. Failure to protect foreigners 601 PART IX. THE TERMINATION OF WAR. Article 936. War, how terminated 602 937. Effect of peace 603 938. Definition of " completed conquest " ' 604 939, 940. National character and allegiance of conquered na- tion 604 941. EfEect of completed conquest as to persons and prop- erty 605 943. EfEect of overthrow of insurrection 606 943. Duress of negotiators 606 944. Effect of treaty of peace 606 945. Amnesty 607 946. Rescission of treaty 607 DIVISION FOURTH. ALLIES. .iRTiOLE 947. Who are allies 609 948. The obligation of allies 609 949. Permission of intercourse must be joint 609 950. Separate compacts not binding 610 951. Prize courts 610 DIYISION FIFTH. NEUTRALS. Article 953. Who are neutrals 613 953. Right to be ^eutral 612 44 ANALYSIS Page Akticlb 954. Attempt to involve a neutral 612 955. " Breach of neutrality " defined 613 956. " Violation of neutrality" defined 612 957. Effect of a breack of neutrality 612 958. Kinds of assistance 613 959. Active assistance 613 960. Passive assistance 614 961. Intervention 614 962. Recognizing independence of insurgents 614 968. Mediation 614 964. Active duties of neutrals 615 965. Breacli of neutrality not justified by precedent obliga- tions 616 966. Aid to sick and wounded 617 967. Pilotage 617 968. Purchase of conquest forbidden 617 969. Time when duties of neutrality take effect 617 970'. Liability for negligence in enforcing neutrality 618 971. Violations of neutrality 619 972. Land forces violating neutrality to be disarmed 619 973. Eight of asylum limited 619 974. Supplies limited 620 975. Protection of hostile ships in neutral port 620 976. Priority of departure 620 977. Prizes not to be sent into neutral ports 621 978. Restoration of prizes captured in violation of neu- trality 621 979. Transactions in breach of neutrality everywhere void . 621 980. Breaches and violations of neutrality declared public offenses 622 981. Redress for injuries in violation of neutrality 632 983. Neutral and belligerent rights and obligations not affected by adverse belligerent not being a party to Code 623 DEPIN-ITIONS AND G-ENERAL PROVISIONS. Abticlb 983. Words,, how used 633 984. Words elsewhere defined 634 985. Good faith , q24 986. Notice 624 987. Actual notice 03^ 988. Constructive notice 004 989. Certain persons deemed to have constructive notice. .. 634 OF THE CONTENTS. 45 Page Article 990. Who are priucipala 625 991. Who are accessories 625 992. Genders 635 993. Numbers 625 994. Computation of time 625 995. Code, everywhere locally binding 626 996. National powers, how exercised 626- 997. Powers and jurisdiction not obligatory 626 998. Forging or counterfetiing public securities, &c 626 999. Uttering forged instrument or coin 628 1000. Perjury ; .... 638 1001. Bribery or menace of public agent 628 1003. Violations of provisions of the Code, by whom pun- ishable 628 1003. Punishment for public offenses 629 1004. Punishment of other violations of the Code 639 1005. Violation of any provision of the Code by public agent 629 1006. Accessions of nations to the Code 629 1007. Rescis.sion of adoption of Code 630 1008. Time when adoption, or rescission of adoption, of Code takes effect 630 APPENDIX. Instrttctions for the Gotbrnmbut of Armies of thb United States in the Field 633 Project of the Brussels Conference 655 Applicability of International Law to Oriental Nations. . 603 Proposition of Peru 671 D OUTLINES INTERT^ATIONAL CODE. PRELIimARY ARTICLES. Abticlb 1. Adopting' Clause. 3. "Nation" defined. 3. Use of the term "Nation " in tliis Code. 4. Use of the term "Person" in this Code. 5. "Member" defined. 6. "Subject" and "Citizen" defined. 7-11. Divisions of the Code. Adopting clause. Al-ticle 1, The following rules are established and declared, by the nations assenting hereto, as an Inter- national Code, by which these nations, and their members, respectively, shall be governed in their rela- tions with each other. As to the extent to which existing special treaties may he abrogated, see repealing clause. By another article any two nations may, by special treaty, modify the application of any of the provisions of the Code, aa between themselves and persons and things subject to their exclusive jurisdiction. A question may arise, how far the rules of this Code should be applied by the nations uniting in it to other nations and their members. There is a large class of subjects, chiefly those known under tha generic title of Pbivatb Intkrnatiojstal Law, in which the advantage of a uniform rule depends partly upon its being a rule resting not so much upon convention, binding only the nations which accede to it, as upon principles of jurisprudence, applicable in all courts, and proper to 1 2 OUTLINES OF AK be imposed upon persons of every nationality, without reference to th« question whether the nations of which such persons are members hare agreed in the adoption of the rule. The provisions of Division Second of Book First are of this general nature. It may he a question, there- fore, whether the application of that Division ought to be restricted to the nations uniting in the Code, and to the members of such nations. When, for instance, a question arises as to the right of a foreigner to hold real property, or to reclaim a wreck, or to claim for his ship the privileges of a domestic ship, the provisions of the First Division will be found not to apply, unless he be a member of a nation uniting in the Code. But, if the question arises in any of the courts of the nations uniting in the Code, whether a foreign marriage or divorce is valid ; whether a foreign contract is to be judged by the law of one place, or that of another ; or a question upon any other of the rules contained in Division Second, it may be thought that the rules prescribed by the Code should be applicable, without reference to the nationality of the parties. The inconvenience or incompleteness of a rule on such sub- jects of private right, which should be applicable to the transaction, so far only as it might afEect the interests of foreigners of certain nation- alities, but not so far as to afEect those of the members of the nation or of foreigners generally, is obvious. If it were desired to give these rules such a general character as would, so far as the courts of the assenting na- tions are concerned, solve and terminate the Conflict of Laws, the fol- lowing clause might be added to Article 1 ; — And the provisions of Division Second of Book First, entitled Pbivate International Law, are to be applied, in each nation which is a party to this Code, not only to foreigners who are members of nations parties to the Code, but also to their own members, and to foreigners of whatso- ever nation, except where a more restricted intention appears. * '■'■Nation'''' defined. 2. A nation is a people permanently occupying a definite territory, having a common government, pecu- liar to themselves, for the administration of justice and the preservation of internal order, and capable of maintaintag relations with all other governments. 1 PMllimore's Tnternational Law, p. 77 ; 1 Kent's Commentaries, 188. And see Texas v. White, 7 Wallace's U. 8. Supreme Court Reports, 700. BluntsehU, {Droit International Oodifte. Art. 18,) adds the restriction that sufficient guaranties of stability should be indicated. A people whose government is not independent, but vassal, — such as that of Egypt, — or incapable of maintaining international relations,— such as those of the States of the American Union, — and a people occu- pying no definite territory,— such as nomadic tribes in Asia and Africa, — or having abandoned one territory to take possession of another,— as in the case of the Mormon emigration, — are not nations, within the pro- visions of this Code ; although they may be regarded as such for some INTEKNATIONAL CODE. 3 purposes, and the two latter classes may make treaties. Bluntaehli, Br. Intern. God., %%%!,%%. Austin, {Province of Jurisprudence, p. 199, cited by Lcmrence, {Oom- mentai/re sur Wheaton, p. 155,) prefers to use the term in an ethnologic sense ; and designates an independent political body as a " State." But the word " State " is by frequent usage appropriate to designate a political body not independent ; and the term " nation " seems preferable for that which is independent. A nation is here defined as it exists as a political fact. For an eloquent discussion of the element of liberty or spontaneity in the right of nationality, see More, Nouveau Droit International, par Pradier-Fod6re, vol. 1, ch. 1, p. 97, and note on page 119. Piore defines a nation thus : " Une libre et spontan§e association de personnes qui, par " communautfi du sang, de langue, d'aptitude, par une affinite de vie civ- " ile, de temperament, de vocation, sont aptes, et predispos§es t la plus " grande union sociale." As to the exceptional case of Indian or other subordinate tribes, within the territory of a nation, but having a quasi national existence of their own, see Cherokee Nation «. Georgia, 5 Peters' V. 8. Supreme Court Reports, 1 ; Mackey v. Coxe, 18 Horoard's U. 8. Supreme Gourt Reports, 100 ; Goodell «. Jackson, 20 Johnson's Reports, {New Tork,) 693, and 188 ; Lcmrence, Gom. sur Wheaton, 364. Use of the term '■'■ nation^'' in this Code. 3. Whenever the word "nation" is hereafter used in this Code, it signifies only a nation party to it, ex- cept when an intention to signify any nation whatever is e:^ressed. Use of the term '■'•person'''' in this Code. 4. "Whenever the word "person" is used, it signifies only a person who is a member, or subject to the juris- diction of, one of the nations, except when an intention to signify any person whomsoever is expressed. "JfewSer" defined. 5. A member of a nation is a person who, according to the rules prescribed in the chapter on National Chaeactee of Persons, is one of the people com- posing such nation. '^Subject''' and ''citizen^' defined. 6. The members of a nation in which the sovereign power is vested in a particular person or persons, are 4 OUTLINES OF AN called subjects ; the members of a nation in which the sovereign power is vested in the people, are called citizens. Divisions of the Code. 7. This Code is divided into two Books. The first treats of the relations of nations and of their members to each other, except as they are modi- fied by a state of war. The second treats of the modifications in the rela- tions of nations and of their members to each other, produced by a state of war. The same. 8. The FiEST Book has two Divisions. The first Division, entitled Public International Law, contains the rules respecting the relations of nations to each other and to the members of other nations. The second, entitled Pbivate International Law, contains the rules respecting the relations of the mem- bers of a nation to the members of other nations. The same. 9. The First Division of the First Book has four Parts. The first Part concerns the relations of nations to each other. The second concerns the relations of a nation to the persons and property of members of other nations. The third contains provisions indended solely for the mutual convenience of nations aiid of their mem- bers. The fourth contams provisions intended solely for the preservation of peace. The same. 10. The Second Division of the First Book has two .Parts. INTERNATIONAL CODE. 5 ■ The first Part defines the private rights of persons,' as affected by the relations of nations. The second regulates the ad/ministration of justice in respect to such rights. ' Perhaps this should be all persona whatsoever ; see note to Article 1. The same. It. The Second Book has three Divisions. The first Division treats of belligerents ; The second of allies ; The third of neutrals. BOOK FIRST. PEACE. DiTiBiON First. Public Intbknational Law. Second. Private International Law. DIYISION FIRST. PUBLIC INTERNATIONAL LAW. Part I. Relations of Nations to each other. II. Relations op a Nation to the Persons and Prop- erty of the Members op other Nations. III. Uniporm Regulations por Mutual Convenience. IV. Provisions for the Preservation op Peace. PAUT I. THE RELATIONS OF NATIONS TO EACH OTHER. Title I. Essential Rights. II. Extra-territorial Action. III. Intercourse. IV. International Compacts. V. Removal op Persons. g OUTLINES OP AN TITLE I. ESSENTIAL RIGHTS OF NATIONS. Chapter I. Sovereignty. II. Equality. III. Perpetuity. IV. Territory V, Property and Domain. The right of a nation to protect its meinbers is not separately treated because, its authority, within the national jurisdiction, is sufficiently recognized in Part II. ; while the rights of members. beyond the jurisdic- tion as defined by various provisions of the Code, are to be peacefully enforced under Part IV. CHAPTER I. SOVEREIGNTY. Abticlb 13, " Sovereignty " defined. 13. Foreign powers not entitled to act within a nation. 14. Sovereignty, how vested. 15. Sovereign or chief officer not .subject to other jurisdiction^ ' ' Sovereignty ' ' defined. 12. Every nation is sovereign within its own juris- diction ; that is to say, it is, of right, independent of all foreign interference, and free to express and enforce its will, by action within its jurisdiction, without op- position from any foreign power. The independence and liberty thus enjoyed by eg,ch nation are not absolute, but are limited by the equal freedom and independence of others, by the provisions of this Code, and by the special compacts to which the nation is a party. See Lawrence's Wheaton, 133 ; 1 Wildman, Int. Law, 47 ; 1 PMU. Intern. Law, 164 ; Lawrence, Gom. sur Wheatou, p. 161. Bluntschli enumerates the following rights as included In the sover- eignty of a nation : 1. To make its own constitution ; INTERNATIONAL CODE. 9 3. To legislate independently for its people and territory ; 3. To govern and administer itself ; 4. To choose its own ofScers ; 5. To appoint and accredit its representatives to foreign nations. More, Nowo. Dr. Int. (ch. II. pt. I.) lays stress on the right of organiza- tion as the central element of internal sovereignty, and this is the Amer- ican doctrine. The right of self-preservation is evidently inherent in that of sover- eignty, but it seems unnecessary to define it. If it were to be defined, it might perhaps be in such mode as follows : Every nation has the right of self-preservation : to be made effectual within its territorial jurisdiction by any means which its sovereignty can exercise ; and beyond its jurisdiction, by such means as are consistent ■(vith the provisions of this Code, and of its own special compacts. Orto- lan, Begles Int. et Dipl. de la Mer, vol. 1, p. 50. « Foreign powers mot entitled to act witTiin a nation. 13. No nation is bound to tolerate the performance, within the places subject to its exclusive jurisdiction, as defined by Title VIII., of any act, official or un- official, of any other nation, except such as is provided for by this Code, or by special compact. Bluntsohli, Br. Int. God., § 69. Sovereignty, Tiow vested. 14. The sovereignty of a nation may be vested in one or more persons, or in the whole people, according as its law may direct. Sovereign or chief officer not subject to other juris- diction. 15. The sovereign or chief executive officer of a na- tion is never subject to the jurisdiction of any other nation, either in his person or property,' except as follows : 1. To the same extent with his nation in its collec- tive capacity ; and, 2. In his private capacity, to the jurisdiction of any nation of which he is a member.' • 3 Phill. Intern. Law, 130 ; Vi^adsworth B. Queen of Spain, 17 (^een's Bench Rep., 171. * Brunswick ■». Hanover, 6 Beavan's Hep., 1. 10 OUTLINES OE AN CHAPTER II EQUALITY. Abticlb 16. Equality in rights and rank. 17. National emblems. Equality in rights and ranlc. 16. All nations are equal in rights.' No distinction in rank between them is permitted ; ' and wherever, in treaties or other official acts, two or more of them are named in juxtaposition, they shall be named in alpha- betical order, according to the first letter of their names, respectively, as expressed ta the French lan- guage, except that each nation may have its own name first ia the document which it retains. ° ^ 1 Kent's Com., 21 ; Kliiber, Droit des Oens, § 89. ' As to the existing distinctions which would be abrogated as matter of right by this rule, see Bluntsehli, §§ 84r-98 ; Ortolan, Bigles Int. et Dipl. de la Mer; Fiore, Nouv. Dr. Int., vol. 1, p. 278. ^ Treaties of Vienna, 1815. National emilems. 17. No nation has a right to appropriate to itself the emblems, title, coat of arms, flags, signals, or uniform, in use and previously appropriated by an- other nation. Bluntsehli, Droit Intern. God., § 82 CHAPTER III. PEEPETUITZ. Abticlb 18. Diminution of territory or population. 19. Change in form of government or in dynasty. 20. Anarchy. 21. Double crown. 33. Annexation of one nation to another. 33. Cession or other annexation of part of territory. 34. Division of a nation. 35. Apportionment of property 26. Apportionment of debts. Diminution of territory or population. 18. Diminution of the territory or population of a INTERN ATIONAL CODE. 11 nation does not affect its 'existence, so long as its people have a territory and government, such as is described in article 2. ]S"or does it affect the rights and obliga- tions of the nation in respect to other nations and their members, except so far as such rights or obligations are necessarily dependent on the territory or popula- tion lost. Suggested by BluniscMi, Br. Int. Cod., §§ 47-50. Change inform of government or in dynasty. 19. A change in the form of its government, or in its dynasty, does not affect the continuity of existence of a nation, or its property, nor does it affect its rights or obligations in respect to other nations or their mem- bers,' except so far as such rights or obligations are necessarily dependent on the continuance of the old form of government ' or dynasty. Lawrence's Wheaton, 39, 53 ; Halleok's Int. Law, p. 77 ; 1 Wildman'slnt. Law, 68 ; 1 Phill. Int. Law, 148 ; 1 Kent's Gom , 35. And see BluntscMi, i;§ 39-45 ; and King of Two Sicilies v. W^ilcox, 1 Simons' Rep., (N. S.,) 301. ' This rule is especially important in its application to national debts. The only questions of real difficulty, arising under the general rule, are those which spring out of insurrections. These are treated in the second Book. The King of the Two Sicilies ®. Wilcox, 1 Simons' Bep., (N. S.,) 301, establishes the principle that where a de facto government has, as such, obtained possession of property, the government which displaces it suc- ceeds to all its rights. ^ For instance, a compact between two republics to protect edch other in a republican form of government, would be terminated by the final establishment of a monarchy in one or both. Anarchy. 20. A temporary condition of anarchy does not af- fect the continuity of existence of a nation. BluntscMi, § 19. As to the effect of a restoration upon the acts of the revolutionary government, see /ti., §§ 44, 45; Lawrence's Gom. sur Wheaton, p. 214, &c. Double crown. 21. When one nation chooses, or receives by suc- cession, as its sovereign, the sovereign of another na- tion, it does not thereby lose its independent existence, 12 OUTLINES OF AN or its separate relations with other nations, unless it be so provided by the terms of union. BluntscMi, §§ 51, 75. Annexation of one nation to another. 22. Where one nation is annexed to another, so as to form part thereof, the latter, by the act of annexa- tion, acquires all the rights and becomes bound to ful- fill all the obligations of the former. This obligation was fully recognized by the new kingdom of Italy, upon annexing a number of States to Piedmont. Such, also, has been the universal practice where entire States hare been annexed by conquest. The United States of America, on annexing the Republic of Texas in 1845, with the consent of the latter, disclaimed all liability for the Texan debt. (See Lawrence, Oom. sur Wheaton, p. 211.) The question never arose in any diplomatic negotiation ; but the claims of the creditors of Texas were felt to be so strong that the United States eventually provided means for their payment, ( September, 1850 ; 5 U. 8. Stat, at Large, 797; 10 Id., 617,) without acknowledging any liability, but as part of an agree- ment by which Texas renounced its claims to certain boundaries. As to the effect of treaty stipulations, see Lawrence, Oom. sur Wheaton, p. 310. Cession or other annexation of part of territory. 23. Where part of the territory of one nation is an- nexed, by cession or otherwise, to the territory of , another, the latter nation, by the act of annexation, acquires all'the rights and becomes bound to fulfill all the obligations which pertained to the former nation, in respect of the territory acquired and its inhabitants and the property therein,' but no others." • See note to last article ; BluntscMi, § 47. ■Id.,% 48. Division of a nation. 24. Where a nation is, from any cause, divided into two or more, each portion, by the act of division, ac- quires all the rights and becomes bound to fulfill all the obligations, which pertained to the original nation, in respect of the • territory in which such portion is situated, or in respect of its inhabitants, and the prop- erty therein. INTEKNAXIONAL CODE. 13 And except as otherwise provided in the three fol- lowing articles, all other divisible rights and obliga- tions must be so apportioned that each portion of the divided nation shall have that share which it would have had without the division ; and, until sucli appor- tionment, the whole of such rights and obligations adhere to each portion in common with the other por- tion or portions. See 1 Phill. Int. Law, 157 ; EaXleek, 78 ; 1 Kent's Com., 25, 36 ; Terret v. Taylor, 9 Oraneh's U. 8. Supreme Gt. Reports, 50 ; Bluntsehli, § 49. Apportionment of property. 25. Where a nation is, from any cause, divided into two or more, its property is to be apportioned as fol- lows, unless otherwise agreed : 1. Immovables, appropriated to public use, such as public buildings and establishments, and charitable and religious houses, pass to the portion of the nation holding the territory in which they are situated ; and such portion is not bound to make compensation to the other therefor, except where the property served the uses of the population of the other, and they incur new expenses to supply its loss : 2. Ships of war, arms, equipments and munitions, military and naval, must be divided in proportion to the population : 3. Public lands, other than those provided for by sub- division 1 of this article, the public funds, and in gen- eral, such national property as serves only indirectly the objects of public utility, form a common fund, which must be divided in proportion to the population, with this qualification, that immovables must always be ap- propriated to the portion in whose territory they are situated, and their value considered in the partition. See Bluntsehli, §§ 56-58. Apportionment of debts. 26. Where a nation is, from any cause, divided into two or more, each portion has the right to have the debts of the original nation provided for from the prop- 14 OUTLINES OF AN erty of the original nation ; and debts not so provided for must be apportioned in proportion to the revenues raised in the different portions of the territory. BluntschU (§ 59) makes the debts secured by mortgage or bypotbecation of immovables rest on that portion of the nation which takes the immov- ables. It is suggested, as a fairer rule, that the common debts be first pro- vided for out of the common property. CHAPTER IV. TERRITORY. AkticIiE 37. "Territory" defined. 38. Boundary by the sea. 39. Adjacent islands. 30. Boundary by a stream or channel. 81, 33. Boundary by inland lakes, &c. 33. Wilderness. 34. Power to determine boundaries. 35. Exception. 86. Injuring boundaries, marks or monuments. 37. Loss of territory, and acquisition of territory. 38. Acquisition by occupation. 89, 40. Extent of occupancy. 41-43. Accretion. 44. Reclaiming land washed away. 45. Ownership of islands. 46. Changes of stream. 47. Transfer or cession. 48. Conquest. " Territory^'' defined. 27. The territory of a nation is the land and watei- which it possesses, or has a present right to possess, as defined and limited by actual and peaceful occupa- tion, by special compact, or by the provisions of this Code. Territory is here used in the sense of sovereignty and jurisdiction, and not in the sense of property ; and therefore it is limited by occupation. Ortolan {Regies Int. et Dipl. de la Mer,) distinguishes between : (1.) Ports and Roadsteads ; (3.) Gulfs and Bays ; (3.) Straits and closed Seas ; (^mers enclaves ;) and (4.) Parts of the Sea adjacent to the coasts within a certain INTEENATIONAL CODE. 15 distance. In respect of the first, he says a nation has a right of property, and may declare them closed, treating, however, all nations alike. The same rule he applies also to gulfs, &c., the mouths of which are not more than double cannon-shot across, or are protected by forts or islands. But this principle seems to extend to the waters bordering the coast ; and no distinction is therefore recognized in the above article and article 51. During the Franco-Prussian war, (1870,) the American government ob- jected to the hovering of armed vessels ofE the coast, awaiting the exit from American ports of merchant vessels of the enemy. The quasi-territorial jurisdiction over land and water within the lines of an army or fleet, beyond the ordinary territorial limits, is provided for in Title VIII., on National Jdbisdiotioit. Boundary hy the sea. 28. The limits of national territory, bounded by the sea, extend to the distance of three marine leagues ' out- ward from the line of low- water mark ; and where bays, straits, sounds, or arms of the sea," are inclosed by headlands not more than six leagues apart,' such limits extend three leagues outward from a line drawn be- tween the two headlands. ' Inasmuch as cannon-shot can now be sent more than two leagues, it seems desirable to extend the territorial limits of nations accord- ingly. The ground of the rule is, the margin of the sea within reach of the land forces, or from which the land can be assailed. 'Mahler ®. Transportation Company, 35 New York Hep., 353; Law- rence's W/ieaton,xi. 320 ; Vatiel's Law of Nati&ns, 130 ; Hautefeuille, Droit des Nations Neutres, (2nd ed.,) 89. See Church «. Hubbart, 2 GraneTi U. 8. Sup. Ot. Rep., 187, 285. BluntseMi (§ 303) says that where the sea boundaries of adjacent nations overlie each other, each nation is bound to respect the sovereignty of the other on the common area. Such cases are provided for in articles 30, 31 and 32. 2 It is believed that no definite rule has heretofore been laid down on this point. See HaUeck's Int. Law, p. 133 ; Laiwenae's Wheaton, p. 333. The distance between the headlands of Delaware Bay is about fifteen miles. Adjacent islands. 29. Islands in the sea, beyond the distance specified in the last article, are presumed to be part of the terri- tory of the nation possessing the adjacent main land. HaUeok, p. 131, § 15, The limit of distance seems to be necessarily indefinite. Islands newly formed by accretion are provided for in arti- cles 41 and 45. 16 OUTLINES OF AN Boundary by a stream, or channel. 30. "Tiie limits of national territory, bounded by a river or other stream, or by a strait^ sound, or arm of the sea, the other shore of which is the territory of an- other nation, extend outward to a point equidistant from the territory of the nation occupying the oppo- site shore ; or if there be a stream or navigable channel, to the thread of the stream, that is to say, to the mid- channel ; or, if there be several channels, to the mid- dle of the principal one. "Thalweg." BluntsehJi, % 298. French treaties. The right to the use of the whole river or .bay, for navigation, &c., is nevertheless an easement or servitude common to both nations. The Fame, 3 Mason's U. 8. Circuit Ct. Reports, 147. See art. 55 below. Boundary by inland laTce, &c. 31. The limits of national territory, bounded by a lake, or other inland water, not being a stream, extend outward to a straight line drawn from the points at which such territory touches the land of other nations on the shore, at low-water mark ; except where such line would fall within less than three marine leagues of the shore of another nation. Tfie same. 32. Where the line mentioned in the last article would fall within less than three marine leagues of the shore of another nation, at low- water mark, it must so deflect as to run that distance from such shore, unless the distance between the opposite shores is less than six marine leagues, in which case the boundary line runs equidistant from the two shores. Wilderness. 33. Where two nations have settled upon the same continent without intervening settlements, and no large stream or body of water, or range of mountains inter- venes between their settlements, the boundary between them is presumed to be equidistant from the nearest settlements ; but, where there is such water or moun- tain range, the one which is most nearly equidistant INTEEISTATIONAL CODE. 17 from such, settlements is presumed to be the bound- ary. 1 JPMU. Intern. Law, 251-354. See BlunUchli, § 397. Powers to determine boundaries. 34. Coterminous nations have jurisdiction jointly to determine and establish the boundaries between their respective territories ;' and it is their duty to do so, and to mark the samei clearly." 1 Poole V. Fleeger, 11 peters' U. 8. Sup. Ot. Sep., 185 ; Latimer v. Po- teet, 14Jd,4. « Bluntschli, % 396. Exception. 35. The foregoing provisions as to boundaries do not apply where the .boundary is otherwise defined by special compact.' ' A boundary agreed upon by the collectors of revenue can not be re- garded as valid. The Fame, 8 Mason's ZT. 8. Girct. Ot. Bep., 147. Injuring boundaries., marJcs, or monuments. 36. Willfully removing, concealing, injuring or falsi- fying any monument, mark or sign, made or adopted by the concurrence of two or more nations for indicat- ing a boundary between them, is a public offense. The regulatiens between Prance and the Grand Duchy of Luxembourg, Oct. 15, 1853, for preserva'tion of boundary marks, (6 Be Glercq, 386, Art. XI.,) provides : that, offenders are to be prosecuted and judged according •to the law of the State in which they are found ; and that, for this pur- pose, proceedings had in either State shall, as far as necessary, have ■equally "foi en justice " in the other. Loss of territory, and acquisition of territory. 37. A nation may lose territory : 1. By abandonment ; 2. By destruction ; 3. By transfer ; or, 4. By conquest. A nation may acquire territory : 1. By occupation ; 2. By accession ; 3. By transfer ; or, 4. By conquest. 18 OUTLINES OF AN No provision is made for devise or succession after death, inasmuch, as the devise of a crown can not' be deemed to destroy the identity of the State ; and the power of a monarch to alienate any part of the national territory by will should not be admitted. Acquisition hy occupation. 38. Territory can be accLuired by occupation, in the following cases only : 1. Wlien it was previously unoccupied by any other tlian a savage nation ; 2. When the nation which previously occupied it has, without ceding it, renounced the sovereignty which it exercised over it, either expressly, or by abandoning the territory ; or, 3. When the inhabitants of the territory overthrow their government and freely join themselves to the oc- cupying nation. Extent of occupancy. 39. Occupancy of any part of an island uninhabited or inhabited only by savages, is presumed to be an oc- cupancy of the whole. The same. 40. A nation is presumed to occupy all territory within the limits over which it maintains an effective control ; and such presumption is conclusive, unless it appears that some other nation actually occupies a por- tion of such territory. Accretion. 41. Land formed in the sea by accretion belongs to the nation whose territory is nearest. 1 PMll. Int. Lam, 257 ; The Anna, 5 RoHnson'a Adm. Bep.,ZZ% ; Bhint- sahM, § 395, note. TTie same. 42. When land is formed on the shore from natural causes and by imperceptible degrees, the boundary between the nation owning it and the nations owning other parts of the shore is modified so as to conform to the change in the shore. INTERNATIONAL CODE. 19 This and the two following articles are suggested by the Code Nwpo- leon, Liv. II., Tit. II., Art. 556-559 ; and Giml Code reported for New York, §§ 443-448. The same. 43. When land is formed on tlie shore from artificial causes or by perceptible degrees, the boundary between the adjoining nations is not changed thereby. Reclaiming land washed away. ^i. If a considerable and distinguishable part of the shore is carried away by the water, to a place within the boundaries of another nation, the nation owning it while attached to the shore may reclaim it within one year, if. it can be restored to the territory of the nation so claiming it ; but until it is so restored it must be deemed to be part of the territory within which it is situated. Ownership of islands. 45. An island, formed from natural causes in any water other than the sea, belongs to the nation within whose boundary it is formed ; or, if it is formed upon the boundary of two or more nations, each nation owns so much of the island as lies within its original boundary. Compare Bluntschli, § 395. Changes of stream. 46. If a stream which constitutes the boundary be- tween two or more nations forms a new course, aban- doning its ancient bed, from natural causes, and by imperceptible degrees, the boundary follows the center of the stream, as defined in article 30 ; but in other cases the boundary remains in the center of the an- cient bed. 1 PUll. Int. Lorn, 258, 359 ; BluntacMi, § 299. Transfer or cession. 47. Territory can be acquired by transfer or cession, upon the agreement of the nations whose sovereignty is affected by the transaction. 20 OUTLINES OF AN Acquisition by transfer or cession is imperfect, until possession is taken by the nation receiving the transfer. Compare BluntscUi, §§ 383, 396. He adds, that to maie a cession valid , tte inhabitants of the ceded territory must recognize the cession, and have the enjoyment of their political rights under the nation receiving the transfer. Conquest. 48. Conquest includes any mode of obtaining pos- session of territory against the will of the power by which it was previously occupied. Acquisition by conquest becomes complete by the permanent continuance of peaceful possession. See BluntscUi, § 390. CHAPTER V. PROPERTY AND DOMAIN. Akticlb 49. Capacity to have property. 50. Eminent domain. 51. Internal domain. 53. Prescription. Capacity to have property. 49. Subject to its constitution and laws,' a nation has capacity to acquire, hold and dispose of : 1. Property " not within the territorial limits of any other nation ; and, 2. With the consent of any other nation, property within the territorial limits of such other nation. ' The capacity to acquire real property may be limited or regulated by the organic law. ' The property of a nation is of two kinds : Ist. Public property or public domain ; that is, that kind which the government holds as a, mere trustee for the use of the public ; auch as navigable rivers, highways, &c. ; and, 3nd. Private domain or domain of the State ; that is, those things in which the nation has the same absolute property as an individual would have in like cases. Halleck, p. 133. INTERNATIONAL CODE. 21 Eminent domain. 50. The power of a nation, by virtue of eminent do- main, to take, or suspend the use of,' property within its territorial limits, for the public use, safety or wel- fare, extends to the property of foreign persons, states and nations. Adequate compensation' must be made therefor, and, except in cases of immediate necessity, at the time of the interference. ' By several treaties, the property of a foreigner can not be taken, or his use thereof impeded or impaired by public authority, without ade- quate compensatien for the interference. Treaty between Prance and Honduras, February 33, 1856, Art. VII., 7 Be Oleroq, p. 10. New Grenada, May 15, 1856, " VI., 7 J See provisions of Chapter XX., on National Chakactbk of Ship- PING. 38 OUTLINES 01" AN CHAPTER VIL DISCOVERT. Aeticle 70. Bight of discovery. 71. Authority. 72. Ratification. 73. Right of possession. 74. Its exercise, how manifested. 75. Limits of continental discovery. 76. Abandonment of right of possession. JiigM of discovery. 70. Every nation has the right of exploration for new territory. Authority. 71. Authority to search for new territory which shall inure to the benefit of a nation, may be conferred by it on the members of any nation whatever, by a previous authorization or by subsequent ratification. ' Without such authority, a discovery made even by a member of the nation confers no right upon it. ' Heffter, § 70, suhd. III., p. 142, and note 4. ' A contrary doctrine has been contended for by the United States, but without sufficient ground. 1 PMll. Int. Law, § CCXXXV., p. 250 ; Heffter, § 70, snbd. III., p. 143, and note 4 ; BluntsaMi, § 279. Ratification. 72. A discovery not previously authorized by the nation can not be subsequently ratified by it, to the prejudice of any other nation, without the consent of the latter. RigM of possession. 73. The nation, under whose authority a discovery of territory is made, has the right to take possession of it as a part of its territory. INTEENATIONAL 00DT5. 29 See Johnson v. Mcintosh, 8 Wheaton's IF. S. 8up. Ot. Sep., 543; Wor- cester «. Georgia, 6 Peters' U. 8. Sup. Ot. Bep., 515; 3 Kent's Oom., 378 ; 1 Id., 178, and note. The individual discoverer has a prior right, as against other indivi- duals, only to so much of the soil as he actually occupies and uses. American Guano Company ©. United States Guano Company, 44 Barbour's {New York,) Sep., ^S. Its exercise, how inanifested. T4. The intent to exercise the right of possession can be manifested only by an actual beneficial occupa- tion. 1 PMlliinore's Intern. Law, § CCXLVIII. ; BluntscMi, Droit Intern. Codifii, § 378. Limits of continental discovery. 75. If the discovered territory is a continental sea- coast, or any part of it, possession thereof is deemed to extend into the interior, to the sources of the rivers emptying within the discovered coast, to all their branches, and the territory watered by them, except as already occupied. 5 American State Papers, 327-339. See to the contrary, BluntscMi, §283. Abandonment of rigJit of possession. 76. The right of possession is deemed abandoned if the intent to exercise it is not manifested within twenty- five years after the discovery. 30 OTJTLIKES OF AN CHAPTER VIII. EXPLORATION AND COLONIZATION. Abticle 77. Right of exploring and colonizing. 78. Exception. 79. Right of pre-emption. HigM of exploring and colonizing. Tl. A nation has for itself and each of its members the right to explore and colonize any territory not within the territorial limits of a civilized nation. " When Englishmen establish themselves in an uninhabited or bar- " barous country, they carry with them not only the laws but the sover- " eignty of their own State." Adv. Genl. ■». Ranee Surnomoye Dossee, 2 Moore's Primy Council Bep., {N. 8.,) 59 ; Forsyth's Cases and Opinions in Const. Law, 30. Exception. 78. The continents of Europe, Asia, and America are, in every part, under the dominion of established government, and are not subject to colonization or set- tlement, in any portion thereof, except with the con- sent of such government. Gardner's Institutes, p. 34, § 13. Right of pre-emption. 79. The nation first exercising the right of coloniza- tion acquires thereby the right of first purchase from the native inhabitants. Whenever an uncivilized com- munity has an established government, that govern- ment is to be respected by civilized governments so far at least, as that in the first instance intercourse with its people is to be sought through such government, and redress for injuries from any of them is to be demanded of it. 1 PhilUmore's Intern. Law, § CCXLIII. Compare BluntsehU, Droit Intern. Codifie, §§ 380-1. INTERIfATIOJSrAL CODE, 31 CHAPTER IX. FISHERIES. Article 80. Commoii right of fishery. 81. Limits* Oommon rigM offlsJiery. 80. A nation has for itself and eacli oi its members the right to take fish in any waters which are not with- in the territorial limits of any other nation whatever. 1 Phill. Int. Law, pp. 303, 305 ; BluntscMi, § 307 ; 1 Twiss, §§ 176, 183 ; Dana's WKeaton, §§ 180, 370-375. See treaty, as to fisheries, between France and Great Britain, 11 No- vember, 1867, 9 De Clercq, 773 ; the convention, relative to New Found- land fisheries, between France and Great Britain, 14 January, 1857, 7 De Olereq, 308 ; and an additional act between France and Spain regulating international fisheries, March 31, 1859, 7 De Clercq, 578. Limits. 81. For the purposes of this Chapter, the territorial limits of a nation extend only to three geographical miles from low-water mark, to be measured with re- spect to bays, the months of which do not exceed ten geographical miles in width, from a straight line drawn from headland to headland. Ma/rten'a Nowb. Bee., 16, p. 954. Convention between England and France, Art. 9, Aug. 3, 1839. Compare Article 38. The right of fishermen lawfully pursuing their calling, to land for the purpose of drying and mending their nets, and procuring necessary sup- plies, is recognized in common with the equal privileges of foreign ves- sels generally, by the provisions of this Code, as to Navigation, and as to Unifoemity. 32 OUTLINES OF Ali CHAPTER X. . PIRACY. Article 83, 83. "Pirate" defined. 84 Harboring pirates forbidden. 85. Capture of pistes authorized. 86. Trial and condemnation. 87. Destruction. 88. Captor's reward. 89. Bestoration of property. 90. Salvage, &e., not allowed to public vessels. ^^ Pirate" defined. 82. Every person wliosoever, who, being an inmate of a private sMp/ upon the high seas," as defined by Article 53, willfully and not in self-defense : 1. Destroys, or seizes by force and appropriates, any other ship, or its lading, or any part of either ;' or, 2. Kill, wounds, or seizes by force and abducts any inmate whatever of any other ship ; Is deemed a pirate. ' It is not necessary that the ship should be an armed ship. Goujet et Merger, Diet, du Droit Gommerdcd, 4, p. 178, § 18. ' By the law of the United States and of France, this limitation of place ife not essential to the crime. Loi 10 avr. 1825, art. 3. See 3 Goujet et Merger, 4, p. 178. ' " The motive may be gratuitous malice, or the purpose may be to ' ' destroy, in private revenge for real or supposed injuries done by per- " sons or classes of persons, or by a particular national authority." Dana's Wheaton, § 134, note 83. Depredation not amounting to robbery is sometimes said not to amount to piracy. To the contrary, however, see Dana above ; Goujet et Mer- ger, above, §§ 9, 11. The abolition of privateering is provided for in Book Second of this Code. The same. 83. Every person whosoever, who, without authority from the owner, and with intent to injure, vex, or an- noy any person whomsoever, or any nation whatever : 1. Removes, destroys, disturbs, obstructs, or injures INTERNATIONAL CODE. 33 any oceanic telegrapMc cable not his own, or any part thereof, or any appurtenance or apparatus therewith connected, or severs any wire thereof ; or, 2. Destroys or injures any international railway, canal, lighthouse, or any other structure or work, the perpetual neutrality of which has been declared ; 3. Or who beyond the territory ' of any nation re- duces to slavery, or holds in slavery, any person whom- soever, or conveys, or receives with intent to convey, any person whomsoever as a slave ; Is deemed a pirate. The abolition of privateering will render unnecessary any provision for the case of foreigners, who accept privateering commissions or letters of marque from a nation at war with another, and who, when taken by the latter nation, may be punished as pirates, under some treaties. Treaty between the United States and Great Britain, 1794, Art. XXI., 8 U. S. Stat, at L., 127. ' The acts specified in this subdivision, when committed within the ter- ritory of any nation, should be left to the local law. Harboring pirates forhidden. 84. No nation can receive pirates into its territory, or permit any person within the same to receive, pro- tect, conceal or assist them in any manner ; but must punish all persons guilty of such acts. Treaty between the United States and Great Britain, 1794, Art. XX., 8 U. B. Stat. atZ., 137. Capture of pirates authorized. 85. If there be probable cause to suspect that a ship is piratical,' any person whosoever may cause its arrest and search ; and if thereupon the suspicion is justified, may capture the ship : but if the suspicion is not justified, the person and ship causing the arrest must make satisfaction in damages according to the circum- stances. ' The Mariana Flora, 11 Wheaton's U. S. Sup. Ot. Sep., 40. Trial and condernnation. 86. Any piratical ship may be brought into a port of any nation, and the ship, its lading and inmates, may be there condemned by the courts of such nation. 34 OUTLINES QF AN Destruction. 87. If they are unable to bring her into port, the captors of a piratical ship may destroy her. Qaptofs reward. 88. A ship or its lading condemned for piracy is to be adjudged to belong to its captors, except as respects the property of innocent third persons. Restoration of property. 89. Property taken by pirates, and brought or found within the territorial limits of a nation, is to be re- stored ' to its innocent owner, saving the rights of hold- ers thereof in good faith and for value, and subject to the payment of such reasonable salvage and expenses, not exceeding one-fourth of its value, as niay be ad- judged by the courts of such nation." Proceedings for such restoration must be there begun on behalf of such owner, or the nation of which he is a member, within one year from the time of so bringing or finding the property.' • To this effect are most of the following treaties : Treaty between the United States and XVI., 8 U. 8. Stat, at L., 33. XVII., 8/^., 70. XX., 8 Id., 137. IX., Sid., 336. XL, 8 Id., 414. VIL,8J(?., 435. VII., 8 Id., 808. Treaty between France and New Grenada, 15 May, 1856, Art. XVIL, 7 De Olercq, 103. Honduras, 33 Feb. 1856, 7 Id., 10. Nicaragua, 11 Apr. 1859, " XIV., 7 Jc2., 586. San Salvador, 3 Jan. 1858, " XVI., 7 Id., 363. ' Treaty between the United States and Mexico, 1831, Art. XL ,8 V. 8. Stat, at L., 414:. Upon payment of one-third of their value, Valin, Gommentaire sur L'Ord, liv. 3, tit. 9, art. 10 ; one-eighth, 6 Geo. IV., ch. 49, § III. ; 18 & 14 Viet., cl). 36, § V. 2 Within a year and a day after being reported at the Admiralty, Valin, above. France 1778, Art. Sweden, 1788, " Great Britain, 1794, " Central America, 1835, •• Mexico, 1S31, " Chili, 1833, tt Colombia, 1834, " INTERNATIONAL CODE. 35 Salvage, &c., not allowed to public ships. 90. If property taken by pirates is brought in or found by a public sMp of war, the deductions for sal- vage and expenses, allowed by the last article, are not to be made. Treaty between the United States and Sweden, 1788, Art. XVII., 8 U. S. Stat, at L., 70. Approved by Hautefeuille, Dea Nations Neutrea, 4, p. 437. 36 OUTLINES OF AN TITLE III. EfTEROOUBSE OE NATIONS. Chapter XI. General Provisions. XII. Public Ministers. XIII. Consuls. XIV. Commissioners. CHAPTER XL GENERAL PROVISIONS. Aeticlb 91. Intercourse, by wliat agents conducted. 93. Minister's or consul's nation, and consul's or commissioner's residence defined. 93. Nations forbidden to entertain unoflScial negotiations. 94. Public agents forbidden to make unoflBcial negotiations or communications. 95. Falsely assuming diplomatic powers, &c. 96. Bigbt of legation, &c. 97. Obligation to receive public agents. 98. A nation may refuse to receive its own members. 99. Personal objections. 100. Rank or status. 101. Conditions may be imposed. 103. Conditional reception. 103. Inconsistent pretensions. 104. Several missions. 105. List of family, official and personal, to be furnished. 106. Secretary in case of absence, &c., of chief. 107. Insignia of office, and flag. 108. Exemption from liability for official acts.' 109. Emergencies. 110. Duty to enforce exemj5tion. 111. Interference with a dispatch to or from a public agent. INTERlfATIONAL CODE. 37 Intercourse, by what agents conducted. 91. Tlie agents througli whom the intercourse of na- tions is condncted are : 1. Public ministers ; 2. Consuls ; and, 3. Commissioners : And they are herein designated as public agents. Minister's or consuVs nation, and consul's or com- missioner's residence defined. 92. The terms "nation of the minister or consul," or "minister's or consul's nation," as used in this Code, mean the nation by authority of which he is appointed, without regard to his individual national character. The terms "nation or country of the consul's or commissioner's residence," mean the nation, or the state, province or colony of a nation, within the terri- tory of vrhich he is authorized to exercise his func- tions. Nations forbidden to entertain unofficial negotia- tions. 93. No nation shall entertaia negotiations ' affecting its intercourse or relations with another, through or with any other persons than public agents duly ac- credited by one to the other ; or duly accredited by some third nation offering friendly offices, with the consent of both." ' It is said to be tte settled practice of the United States to hold no private interviews with persons with whom it cannot hold ofBcial inter- views. Dana's WJieaton, § 76, note 41, p. 131. •^ The friendly offices of the representatives of third powers are invoked in case of war, for the protection of individuals, &c. ; and perhaps pro- vision for similar offices during peace, in exigencies, such as absence, &o., should be made. Public agents forbidden to maTce unofficial negotia- tions or communications. 94. Public agents must make no communication to the people of the nation to which they are accredited. 38 OUTLINES OF AN intended to affect tlie action of its government ; ' nor enter into negotiation tending to affect international intercourse or relations, with any persons other than those duly authorized by the government." 1 The act of an envoy, in communicating with the people through the press, has been said to be a contempt of the government. 1 Opinions of U. 8. Attorney Generals, 74. ° It is for each nation to determine, by its constitution and laws, the department of government in which the administration of its foreign ■ afEairs shall be vested. Falsely assuming diplomatic powers, &g. 95. Fo person, other than a public agent mentioned in article 91, shall assume to represent a nation in its intercourse with another nation, or enter upon nego- tiations with the government of any nation other than his own, intended to affect its intercourse or relations with another. A violation of this article is a public offense. A deputation, addressing, in the name of their own nation, a foreign sovereign, on the relations of peace and war between the two countries, are guilty of an offense against the law of nations. Annual Register, 1853, p. 11, cited in Lawrence's Wheaion, p. 373, note 115. Such acts are considered as offenses, also, by some systems of municipal law. RigM of legation, &g. 96. Any nation' may send to any other nation as many public agents of any class mentioned in article 91, as it may choose," subject to the provisions of this Title. ' It is unnecessary to explain where this power rests in the case of con- federacies, or vice-royalties ; because these provisions apply only to na- tions uniting in the Code. - Several ministers may be sent by one nation to the same foreign court, Lawrence's Wheaton, p. 386. This and the six following articles are suggested by the rules usually given respecting public ministers ; but are thought to be equally appro- priate in their application to all classes of public agents. Obligation to receive public agents. 97. Every nation is bound to receive public agents of other nations, except as otherwise specified in this Title, and to treat them as herein provided. By the existing rule of international law, the duty to receive foreign ministers is of imperfect obligation. Dana's Wheaton, § 297 ; Kliiber, INTEBNATIONAL CODE. 39 Droit des Gens, % 176, and note b ; 3 PMUmore's International Law, 154 ; More, Nowoeau Droit International, vol. 2, p. 64S. According to Heffter, Droit International, § 200, there is' no obligation but tbat of courtesy. But a general refusal to receive any envoy renders international inter- course impossible ; and in the three following articles are enumerated the cases in •which a refusal should be allowable, between nations that are parties to this Code. The duty to receive consuls is positively declared in many treaties, subject only to the right of a nation to exclude all consuls from par- ticular places, where it may be inconvenient to receive the consuls of any nation. A nation may refuse to receive its own members. 98. A nation may refuse to receive, as public agents, persons who are its own members, at the time of such refusal. France refuses to receive her own citizens as ministers. Kluber, § 186, and note c. So do Sweden and the Netherlands. Objection has been made to receiving as a minister one who was for- merly a member of the nation, but has been naturalized by the nation sending him. KVSber, § 186, and note c. It has been suggested that in such case a special agreement should first be made. Dana's Wheaton, § 351, note 137. That suggestion, however, should hardly be followed. According to the provisions in the Chapter on National Character of Persons, naturalization would efiect an absolute and complete change of nationality. Consuls are often chosen from among the members of the nation in which they are to reside ; but it is understood to be the existing rule that a nation may refuse to receive any particular person. Bluntschli, Droit International Oodifle, § 348. And it is believed that a uniform rule applicable to all agents of public intercourse, such as is suggested in this and the following articles, would be more convenient. Personal objections. 99. A nation may refuse to receive, as public agent, any one who is personally objectionable, ' on informing the government by which he is sent, that the refusal is for personal reasons ; but the reasons need not be more particularly stated." ' 3 Phitt. Int. Daw, 149. Several cases of refusal on personalgrounds are mentioned in KlUier, § 187, note d ; Dana's Wheaton, § 251, note 137. ^ Dana's Wheaton (§ 310) allows the refusal, if the motives are alleged. But the above rule should seem to be sufficient. Hank or status. 100. Mere social condition, or status, of a person 40 OUTLINES or AN sent as public agent by one nation to another, is not a valid reason for personal objections, within the mean- ing of the last article. BluntscMi, §§ 163 and 164, note. Wheaton {Lawrence's Ed., p. 386) states that usage requires the interchange, in permanent missions, of persons of equal rank. It is submitted that this should not be recognized as a rule. Conditions may he imposed. 101. A person whom the nation might refuse to re- ceive as public agent, under article 98 or 99, may be received upon conditions,' to be accepted or rejected, as the nation sending him may determine. Halleck's International Law, p. 185. BluntscMi (§§ 167, 168) says, pro- priety requires that the foreign nation should be previously notified of the name of the proposed envoy, and if no objection be made or question raised by the latter, as to the appropriateness of the choice, it may be inferred that there are none ; and, after an envoy has been received, no objection can be made to his appointment for causes which existed or which might have been known, before the reception. It seems hardly necessary, however, to recognize such a restriction. ' The conditions are usually the waiver of immunities. Conditional reception. 102. If no condition is expressed at or before the time of reception, the reception is unqualified, and the agent js then entitled to all the privileges of his office. If received upon condition, the agent has all the privileges of his office not expressly excluded by the terms of his reception. Inconsistent pretensions. 103. In the cases of persons claiming powers incon- sistent with the laws or policy of the nation to which they are sent, such nation may require their powers to be defined, and reduced to satisfactory limits. Heffter, g 300 ; Ealleck, p. 185. Several missions. 104. The same person may be accredited to more than one nation at the same time ; ' but in such case any nation may for that reason refuse to receive him." INTEENATIONAL CODE. 41 ' Lawrence's Wheaton, p. 886, and note 123. ^ This qualification seems necessary for the case of unrecognized States ; and others, where incompatibility of functions may arise. List of family, official and personal, to he fur- nisTied. 105. Every public agent, on being received, must furnish, to tbe government receiving Mm a list of the persons composing his family, personal or official,' or attached to his office, and must thereafter give the like notice of any change therein." The government may refuse to recognize them, or any of them, or annex conditions, for the same reasons and in the same manner as is provided in articles 98-104. ' " Suite " is defined in article 119. ^ This article is suggested by the provision in the consular treaty be- tween France and Austria, Deo. 11, 1866, (9 De Olereq, p. 669, Art. VI.) which requires consuls at the head of consular posts to give such list on their arrival. The time of recognition seems more appropriate than that of arrival. Secretary in case of absence, &g., of cJiief. 106. Upon the recall, death, resignation or absence of a public agent, or his inability to discharge the du- ties of the office, th.e subordinate who becomes charged with the affairs of the office, and whose official char- acter has previously been made known to the govern- ment, ' as required by article 105, has, for the time be- ing, the powers and immunities of a temporary min- ister," or of his chief, if the chief be a consul,' or other agent, although, not furnished with a formal letter of credence or act of permission as such. ' The previous communication of the official character is obviously a proper condition. ^ For this rule, as to ministers, see X'O'ijurence's Wheaton, p. 440, note ; BluntscJiZi, § 180. Rank is not aflfected. ' For this rule, as to consuls, see the convention between thg United States and Italy, February 8, 1868, 15 U. 8. Stat, at La/rge, {Tr.,) 185, Art. VII. The treaty between France and Peru, March 9, 1861, Art. XLI. (8 De Olercg, 193,) provides, in reference to consuls, that the officer high- eat in rank at the consulate shall act ad interim. Insignia of office, and flag. 107. A public agent having a fixed residence or place 42 OUTLINES OF AN for exercising his functions, may put over the outer door of his official residence or office the arms of his na- tion, with an inscription designating its character. And he may raise the flag of his nation on snch building, ' or on any vessel where he is exercising his functions. ' ' This article is suggested by the treaty between tbe United States and Italy, as to consuls. 15 V. S. Stat at L., [Tr.,) 185, Art. V. ^ The above treaty, however, does not allow the flag to be raised by a consul in the capital of either country when a legation is there. The consular convention between France and Brazil, December 10, 1860, (8 De Olercq, 153,) gives the right of raising the flag only on days of public solemnities, national or religious. See also, the treaty of friend- ship, commerce and navigation between France and Peru, March 9, 1861, Art. XLIV., 8 De Glereq, 193. To similar effect as the above is the consular ' convention between France and Austria, Dec. 11, 1866, (92)6 Glereq, p. 669,) which gives, how- ever, the right to raise the flag on the consular mansion, and on the ves- sel in the port in which they may be exercising their functions. Exemption from, liability for official acts. 108. A public agent is not subject to the jurisdiction of the nation, within the territory of. which he resides or exercises his functions, for official acts done under the direction of the government of his nation. Salleck (p. 248) states this rule as applicable to consuls. Perhaps it should be restricted to those agents who have been expressly received by the nation in which they exercise their functions. See Chiide Pratique des Oonaulats, vol. 1, p. 10. Emergencies. 109. The exemptions or immunities mentioned in this Title may be withdrawn in the case of an emer- gency affecting the existence of the nation. Darm's Wheaton, § 237, note 129. Duty to enforce exemption. 110. The nation within whose jurisdiction a public agent is entitled to enjoy privileges or immunities, is bound to enforce them, and to prevent and redress every violation thereof committed within the same. This rule is drawn from the authorities applicable to ministers. Bet- ter , § 204. ■" INTERNATIONAL CODE. 43 Criminal punishment, however, can not be inflicted, except as provided by the law of the place. Beffter, | 305, p. 383. Thus, in Commonwealth V. De Longchamps, 1 Dallas' U. S. Supreme Gt. Rep., 116, the court re- fused to imprison the defendant for an assault upon a secretary, until his sovereign should declare that the reparation was satisfactory. By the rule in force at present, this obligation is said to be imposed only upon the nation to which he is sent ; (Lawrence's Wheaton, p. 431, note 141 :) although by courtesy a nation through which a minister is passing will usually extend protection. Interference with a dispatch to or from a public agent, 111. Any person whosoever willfully and without au- thority impeding the transmission or delivery, or opening, reading, copying, or divulging the whole or any part, of the contents of any dispatch sent by or to a public agent, is guilty of a public offense. CHAPTER XII. PUBLIC MINISTERS. Section I. Appointment and reception. II. Bank. III. Powers. IV. Immunities. SECTION I. APPOINTMBNT AND KBCBPTION OF PUBLIC MINISTBRB. ABTlCliB 113. Four classes of ministers. 113. Letters of credence. 114. Letters, how issued. 115. Power to act in a congress or conference. 116. Full power to negotiate treaty. 117. Notifying arrival. 118. Recognition of minister's nation by reception 119. Official and personal family. 44 OUTLINES OF AN Four classes of ministers. 112. Public ministers are either : 1. Ambassadors ; ' 2. Envoys ;" 3. Resident ministers ; or, 4. Temporary ministers, otherwise called charges d'affaires.' Lawrence's WJieaton, p. 879 ; BluntschU, Dr. Intern. Codifii, § 171 ; Congress of Vienna, 1815 ; of Aix-la-Ghapelle, 1818. ' This class includes papal legatees and nuncios. The distinction, stated in the books, that ambassadors represent the person of the sovereign by whom they are sent, while the other classes of ministers represent their principal only in respect to the particular business committed to their charge, {Protocol of the Congress of Vienna, Art. II.,) seems now to amount to nothing more than saying that they are the highest class of public ministers. Dignities peculiar to their rank are matter of etiquette, not necessary to be defined in a Code. * These include ministers plenipotentiary, envoys ordinary and extra- ordinary ; also, the internuncios of the pope. BluntschU, § 173, note. ^ Vattel says, that the secretary of tHe embassy (not that of the ambas- sador) having his commission from his sovereign, is a sort of public min- ter. But it is hardly necessary to recognize this as a fifth class. More {No^iv. Dr. Intern., vol. 3, p. 613) holds with some others to the opinion that consuls are a class of diplomatic officers, but this is rather a dispute about name than function. Letters of credence. 113. A public minister, sent by one nation to an- other, must be furnished by his own government with a letter of credence, addressed as provided in article 114, and an authenticated copy thereof must be de- livered to the government of the nation to which he is sent. Lawrence's Wheaton, p. 388. Letters, how issued. 114. Letters of credence are issued by, and addressed to, the sovereign or chief executive officer of the na- tion, for the ministers of the first three classes ; and by and to the minister, or other officer having charge of foreign affairs, for those of the fourth class. BluntschU, § 185 : Lawrences Wheaton, p. 388. INTERNATIONAL CODE. 45 Power to act in congress or conference. 115. A public minister sent to a congress or confer- ence, must be furnislied with a letter of credence, or other documentary evidence of Ms powers, to be ex- changed or deposited with, those of the other members of the congress or conference. Lawrence's Wheaton, p. 388. FvM power to negotiate treaty. 116. A public minister, authorized to conclude a treaty, must be furnished with written authority there- for, in addition to his letter of credence. Lavyrenoe's Wheaton, p. 443. Notifying arrival. 117. A public minister, on arriving at his post, must notify his ai;rival to the minister, or other officer hav- ing charge of foreign affairs. The mode of notification, aad tte sub.sequent ceremonies of audience, differ according to the class of ilie minister, and the usage of the govern- ment. Lawrence's Wheaton, p. 393 ; Bluntscldi, §§ 1S8, 189. Recognition of minister' s nation by reception. 118. The reception of a public minister is a recogni- tion of the government by which he is sent. Sir J. Mackintosh's Works, p. 747, cited in Lawrence, Gommentaire sur Wheaton, p. 196 ; Bluntsohli, § 169. Wheaton says, that for the purpose of avoiding recognition, diplomatic a.gents are frequently substituted, who have the powers and immunities of ministers, without the representative character or honors. Such were Messrs. Mason and Slidell, the messengers of the Confederacy, who were seized on board the Trent. Lavyrenoe's Ed., p. 377, note 118. But the rule stated in the text is the better supported by reason. There cannot be agents without a principal. Official and personal family. 119. The persons actually employed by a public min- ister in aid of his diplomatic duties, or in his domestic service, constitute his -family, official or personal. The term " official family," as here used, is preferred to "suite." Some of the authorities indicate that a permanent or indefinite employ- ment is necessary, to entitle the employee to the immunities ; but this seems too strict a rule. It would sometimes exclude bearers of dispatches and messengers. 46 OUTLINES OF AM" SECTION II. EANX OF PUBLIC MINISTEKS. Akticle 130. Classes. 131. Relation between courts. Classes. 120. Public ministers take rank, between themselves, in each, class, according to the date of the official noti- fication, to the government to which they are sent, of their arrival at their post. Protocol of the Congress of Vienna, 19 March, 1815, Art. IV., quoted in Lawrence's Wlieaton, p. 380, note. This rule is there qualified so as not to affect the precedence accorded to the representatives of the pope. Relation ietween courts. 121. No distinction of rank among public ministers arises from consanguinity, or family, or political rela- tions between their different sovereigns or nations. Protocol of the Congress of Vienna, 1815, Art. VI. ; Wlieaton, Elem. Int. Law, pp. 380, 386. SECTION III. POWBBS OF PUBLIC MINISTKRB. Article 123. Powers defined by instructions. 133. Issue of passports. 124. Authentication of documents. 135. Communications, when to be in writing. 136. Termination of powers. 137. Death. 128. Recall. 139. Contingent negotiation in case of death, deposition or abdication. 130. Suspension of powers pending recognition. 131. Withdrawal. 133. Dismissal. 133. Assigning reasons. 134. Preventing personal intercourse. 135. Ratification of old letter of credence. INTERNATIONAL CODE. 47 Powers defined hy instructions. 122. The powers of a public minister are suoh as are given him by his own nation ' subject to the pro- visions of this Code. The nation to which he is accredited cannot re- quire him to disclose his instructions. ' The ministers of all classes accredited to one government often unite in a collective capacity for acts of courtesy, and the expression of common opinion ; but they have no authority except in their individual functions. BluntschU, however, (§ 183, note,) regards the corps diplomaUque as the germ of the future organization of the world. Issue of passports. 123. A public minister may give passports to mem- bers of his own nation, but to no others.' It is hardly desirable that the system of passports should be retained, except to afford certificates of national character, and, therefore, none should be issued to foreigners even by leave or sufferance, as has been done. See Lawrence's Wheaton, p. 389, note 126. ' As provided in the articles on Passports and Safe Conducts and Effect of Passports, in Section I., respecting Rights op Rbsidbnce, of Chapter XXV. , entitled Personal Eights of Fobeignbbs. Authenticati&n of documents. 124. Public ministers and their secretaries of lega- tion may receive or authenticate, for use in their re- spective nations, such documents, besides those spe- cially provided for by this Code, as they may be authorized to receive or authenticate by the laws and regulations of their nations respectively. Communications, when to be in writin-g. 125. A minister, or other officer in charge of foreign affairs, may require a copy, to be left with him, of any document or written paper, the contents of which a public minister reads or otherwise makes known to him. Dana's Wheaton, § 319, note 133. It may be thought better to provide that either party may require any official communication to be reduced to writing. Termination of powers. 126 The powers of a public minister are terminated, either ; 48 OUTLINES OF AH 1. By death; 2. If appointed for a fixed term, by the expiration ■of the term ; ' 3. If serving temporarily, by the resumption of •duty by his chief, or by appointment of a new chief ; 4. If the only object of the mission was special, by its fnltillment or final failure ; 5. By recall by his own nation ; 6. By the death," deposition,' or abdication of the isovereign,* by or to whose nation ' he is accredited ; to the extent provided in article 139, and no further ; 7. By a change in the dynasty or the form of gov- ernment of either nation ; 8. By his voluntary withdrawal, as provided in article 131 ; 9. By his dismissal by the nation to which he is .accredited, in the cases provided in article 132 ; or, 10. By his transfer from one class to another of those mentioned in article 112. ' In this and the next case, a formal recall is unnecessary. * Lawrence's WTieatcm, p. 429. Bluntsehli, § 231, says, that death does -not annul the letters of credence, although it is usual to renew them. ^ Lawrence's Wheaton, p. 430, note 145. ■• No such rule applies in case of the succession to the chief executive ofiBce of a republic. Lawrence's Wheaton, p. 430, note 145. ' A change in the ministry of foreign affairs does not affect the powers of temporary ministers accredited to such ministry. Bluntsehli, § 383. Fiore, {Nouv. Dr. Intern., vol. 3, p. 628,) says, that the powers termin- ate by nominatipn to other functions incompatible with those of minis- -ter ; but this should be left to be treated as a ground of dismissal. Death. 127. On the death of a public minister, the secre- tary of his legation, or in the absence or inability of such secretary, the minister of some other nation should place seals upon his effects, for the benefit of those interested, and take charge of his body, for its interment or conveyance home. In case of their failure to do so, the nation to which he is accredited must undertake these duties. INTEENATIOKA-L CODE. 49 By tliB existing rule, the local authorities do not interfere except in case of necessity ; Halleck's Int. Law, p. 235, § 34 ; and then only for the protection of the effects, &c. BhmtscMi, % 340. Jiecall. 128. When a nation recalls its public minister by a letter of recall, an autbenticated copy thereof miist be deliyered to tbe authority '• to which be was accred- ited. Lawrence's WTieaton, p. 438. Letters of recall are not always sent, in case of recall on account of rupture of friendly relations. More, Nouv. Br. Intern., vol. 3, p. 631. ' To the sovereign, or to the minister of foreign affairs. See Arti- cle 114. Contingent negotiation in case of death, deposition of abdication. 129. In case of tbe deatb, deposition or abdication of the sovereign by or to whose nation a public minis- ter is accredited, the powers of the minister to enter into new stipulations cease ; but negotiations already commenced may be continued, subject to subsequent ratification or rejection. This rule is from Lawrence's Wheaton, p. 433, extended so as to include the case of deposition: More, {Nouv. Dr. Int., vol. 3, p. 629,) says, that it is only the ministers of the first two classes whose powers are suspended by the death of the sovereign. The charge d'affaires, being accredited by the ministers of foreign affairs, can continue his functions even after the death of the sovereign. But the true distinction should seem to be between the functions which are continuous in their nature, and those which are not continuous. The minister may still intervene for the protection of his countrymen, and may issue passports and the like. Suspension of powers pending recognition. 130. When the powers of a public minister are ter- minated by a change in the dynasty or form of govern- ment of the nation by or to which he is accredited, he may remain at his post until opportunity is allowed for determining the question of recognition of the new government ; and in the meantime, he is entitled to the immunities of a public minister, if he assumes no powers. Lawrence's Wheaton, p. 378, note 117 ; Hallech, p. 337, § 37. And .see BluntscUi, § 330 ; Dana's Wheaton, § 309, note 131. 50 OUTLIlfES OP AN WitTidrawal. 131. A public minister may at any time declare Ms mission terminated, by notifying Ms withdrawal to the authority ' to which he was accredited. He is responsible only to his own nation for a breach, of duty or in- structions in this respect. ' To the sovereign, or to the minister of foreign affairs. See Article 114 DisTnissal. 132. A nation may dismiss a public minister accred- ited to it by another nation : 1. When his nation has violated this Code, or any special compact ; or, 2. For any personal objection by reason of which the reception of a minister may be refused, according to articles 99 and 100. Assigning reasons. 133. A nation dismissing a public minister must as- sign the reason thereof to the nation by which he was sent. If they are personal, it is sufficient to state the fact, without mentioning particulars, according to article 99. Preventing personal intercourse. 134. Upon dismissing a public minister, a nation may, if its own safety appears to require it, forbid all intercourse with him. Qrotivj), Bk. 3, c. 18, § 4 ; Kent's Commentaries, vol. 1, p. 39. Article 142 sufficiently provides for his safe return. Ratification of old letter of credence. 135. If upon a termination of the powers of a public minister, in cases under article 126, he is authorized to continue as a minister to the same nation, whether in the same class of ministers or not, a formal notification that his letter of credence is ratified is equivalent to a new letter of credence. The rule already applied in some cases, is in substance the same as that above stated. INTERNATIONAL CODE, 51 SECTION IV. nOTUNITIES OF PUBLIC MINISTBBS. Article 136. Rigtt of passage. 137, 138. Passage during war. 139. Exemptions of person and property. 140. Duration of exemptions. 141, 143. Exceptions as to exemptions. 143. Dwelling-house. 144. Family, official and personal. 145. Servants. 146, 147. Waiver of privileges. 148. Property in trade. 149. Returning minister. 150. Domicil. 151. Jurisdiction of his own nation. 153. High crimes; 153. Arrest of criminal act. 154. Right to punish family. 155. Taxes. 156. Importations. 157. Bearers of dispatches. 158. Reparation for violence to property. Right of passage. 136, Every public minister has tlie right ' of passage, with his family, official and personal, through the ter- ritory of every nation with which his own nation is at peace, so far as may be necessary to enable him to reach his official destination ; but the line of transit may be prescribed by the nation though whose territory he may pass at its option.' ' See 3 Phill. Int. Law, 186-189. The general principle was acknowl- edged, while the limitation here stated was insisted upon, by the govern- ment of Prance, in the case of Mr. Soule, in 1854. See Correspondence, Lawrence's Wheaton, p. 433, note ; Holbrook «. Henderson, 4 Sandford's (New York) Rep., 631. " BaUech, Intern. Law, p. 384. Passage during war. 137. If the nation through whose territory the right n2 OUTLINES OF AN of transit is desired be at war, the minister must first obtain from it a safe conduct or passport. This rule is iTomJBalleak, p. 333, extended so as to require tlie authority to be obtained even where his own nation is not one of the belligerents. The same. 138. A public minister who enters the territory of a nation at war, without obtaining the authorization re- quired by the last article, or departs from the line pre- scribed for his transit, may be arrested and conducted to its frontier. Ealleck, p. 334. Exemptions of person and property.' 139. The person ' of a public minister within the ter- ritory of the nation to which he is sent, or within that through which in going or returning he passes in the usual course, and the movables in such territory be- longing to him, or in his official charge," are exempt from the jurisdiction of such nation, subject to the ex- ceptions mentioned in this Title. The formalities requisite for his unofficial acts are subject to the same rules as those of other persons.' ' Jurisdiction is excluded, though neither his person nor his personal property is touched by the suit. Magdalena Co. v. Martin, 3 EIUk dk Ellis' Sep., 94. The right of the minister of the Netherlands at Washingtou to decline to testify was admitted by the United States ; and on their ap- plication to his government, the latter declined to instruct him to appear. Dana's WheMon, §33.5, note 135. '' E. g., the archives of his mission. Torlade v. Barrazo, 1 Miles' {Penn- sylvania) Rep., 378 ; Holbrook v. Henderson, 4 Sandford's {New York) Rep., 633. ■ 2 It is proposed by this to abolish the existing rule that in tranaactious relating to his movables, {Heffter, Bvoit Intern., % 43 ; Kluber, Droit des Oens, % 309,) or his personal rights or relations, a i ublic minister is not bound to adopt the formalities required by any other nation than that by which he is accredited. 1 Foelix Droit International Prive, p. 416, no. 310. Duration of exemptions. 140. The exemption to which a public minister is en- titled in respect of his person, property and family, official and personal, commences from the time when INTEENATIOWAL CODE. 53 the nation from whicli the exemption is claimed has notice of his character, ' and continues with his powers until his death," or, in other cases, until a reasonable time has elapsed after his powers have terminated,' except as provided in the next two articles. ' Thus, if he is a resident at the time of his appointment, his exemp- tion dates from the time of the receipt of his credentials. Kluher, § 303, note f. ■•' Attorney General v. Kent, 1 Hurlstone & GoUman's Bep., 13 ; Magda- lena Co. v. Martin, 3 Ellis & Ellis' Rep., 114, hy Lord Campbell, C. J. 5 In Torlade ■». Barrazo, 1 Miles' [Pennsyliiania) Rep., 379, twenty-two days were considered a reasonable time. Some authorities, however, state that his personal property is not exempt after the termination of his powers. Marten's Lcm of Nations, Bk. VII., cb, 5, § 8, Cobbet's Trans- lation, 1795. Exceptions as to exemptions. 141. Upon a change in the dynasty or form of gov- ernment, or the death, deposition or abdication of the sovereign of the minister's nation, and an exclusive recognition of the new government by the nation to which a public minister is accredited, the courts of such nation have jurisdiction to compel the delivery to his successor of such archives of his mission,' and other property in his official charge, as may be found within its territory. ' See Torlad§ v. Barrazo, 1 Miles' {PennsyVoania) Sep., 378, where the court avoided a decision on this point. Tlie same. 142. The nation to which a public minister is accred- ited may fix a reasonable time from the termination of his powers, at the end of which the exemptions to which he is entitled shall cease. Hallech, p. 335. BwelUng-Jiouse. 143. The actual dwelling-house of a public minister is exempt from the jurisdiction of the nation to which he is sent, ' but can not be used as an asylum, except for the protection of members of his nation ' against in- 54 OUTLINES or AN vasions of rights secured to them by tMs Code, or by special compact, or for the protection of members of a nation on whose behalf his friendly offices are interposed. 1 2 Phill. Intern. Lam, pp. 193, 210 ; Lawrence's Wheaton, p. 400 ; United States «. JeflFers, 4 Oranch's U. 8. Circuit Court Rep., p. 704. Other inj- movables of a minister are not exempt. 2 PhiU. Int. Lam, p. 192. ' 3 Phill. Int. LoM, pp. 211-213. A crime committed in a minister's hotel, by a person not belonging to his family, official or personal, al- though by a member of his nation, is within the jurisdiction of the nation to which he is sent. Case of MitchencofE, X. Sol. Journ., 56. The right of asylum is denied in general terms by 2 Fmlix, Dr. Int. Prive, p. 293, § 576 ; Seffter, % 63. < Perhaps the office should be also included. Family, official and personal. 144. The members of the family, official and person- al, of a public minister, are exempt from the jurisdic- tion of the nation to which he is sent, or through the territory of which they pass in company with him, to the same extent as is his person. Servants. 145. The last article does not extend to a person taken into the service of the minister, and belonging to a nation by the law of which such person is incapable of making such contract of service, or prohibited from making it. 9 Opinions of U. S. Attorneys-General, 7. The absence of such a pro- vision would enable the minister to employ " any discontented wife, . . . rebellious child, . . . the soldiers of a garrison, .... the sailors from a ship, . . or a felon." Waiver of privileges. 146. The privileges of a public minister, and of such of his official family as are appointed by the direct ac- tion of the government which he represents, can not be waived by him, except so far as to submit to the juris- diction of a foreign nation in matters not involving an interference with his person or personal property. Taylor v. Best, 14 Common Bench Sep., 487 ; 2 Phill. Int. Law, 197 ; United States i>. Benner, Baldwin's Rep., 234. The same. 147. The privileges of the family, official and per- sonal, of a public minister can not be waived by any of INTERNATIONAL CODE. 55 them ; but may be waived by Mm,' except as other- wise declared in article 146. 2 PUll. Int. Law, 196. ' 1 Falix, Dr. Intern. Prit>i, p. 417, note b. Property in trade. 148. The property of any member of the family of a public minister, invested in trade, is subject to the jurisdiction of the nation within whose territory it is situated. This exception to tie general rule of immunity does not extend to min- isters themselves. See Taylor «. Best, 14 Gommon Bench Rep., 487. Returning minister. 149. The nation of a public minister can not deprive him of his privileges as a returning minister, without his consent. la Torlad^ «. Barrazo, 1 Miles' (Pennsyhania) Sep., 366, 385, it was held, that the institution of an actiou of trover to recover the archives of the mission, by the cTiargS of a newly recognized government against bis predecessor, did not ipso facto divest the defendant of such privilege. Domicil. 150. The domicil of a public minister is not changed by his appointment, ' or by any of his acts done while his powers continue." ' This rule applies to the case of a person domiciled at the time of his appointment in the territory of the nation to which he is accredited. Westlake, Private Intern. Law, § 47 ; Attorney-General ». Kent, 1 Hurl- stone & Coltman's Rep., 13. ' Fcelix, Br. Int. Prive, vol. I., p. 418, § 211 ; Heath v. Samson, 14 Bea- van's Rep., 441. Jurisdiction of Ms own nation. . No person, by reason of being a public minister, or a member of the family of a public minister, is exempt from the jurisdiction of the nation of which he is a member, except to the extent of freedom from arrest on civil process. Sigh crimes. 152 In case of the commission of a high crime by a public minister, or by one of his family, in a foreign 56 OUTLINES OF AN country, the nation in whose territory the offender is found, may compel him to leave it ; and may use any degree of force necessary to secure his departure. Lawrence's Wheaton, p. 395 ; 3 Foilix, Br. Int. Prim, § 576, p. a93 ; Jleffter, § 306. Arrest of driminal act. 153. Any person or nation may arrest any act of criminal violence on the part of a public minister, or any of his family ; and may use any force necessary to prevent the commission of such act. 3 PMU. Int. Law, p. 185 ; United States ». Liddle, 3 Washington's U. 8. Circuit Court Sep., p. 305 ; United States v. Ortega, 4 Id., 537 ; Lawrence'^ Wheaton, p. 395. RigTit to punish family. 154. A public minister has no power to inflict crimi- nal punishment upon any of his family ; but, with the consent of tjie nation in whose territory he is, he may use any necessary force to send home any of them charged with crime. See Halleck, p. 330. Taxes. 155. It is the duty of a public miaister to pay taxes and assessments imposed upon his property for its benefit ; ' but this duty can not be enforced by any na- tion whatever, by means of any process against his person,' nor by the nation to which he is sent, by means of any process against such of his property as is exempt from its Jurisdiction.' ' Hecent treaties give consuls a more liberal exemption. See Prelim- inary Note to Section IV. of next Chapter. '' 1 Twiss, Law of Nations, § 303. na.; ffifi6er, § 305. Importations. 156. A public minister is entitled to import articles for the use of himself and his family, official and per- sonal, to a reasonable extent, free of duty. See Lawrence's Wheaton, p. 416 ; Attorney-General v. Thornton, 1 Mc- Lelland's Sep., pp. 600, 607. INTERNATIONAL CODE. 57 It is sometimes said, that he may be required in tlie first instance to pay the duty, but that it can not be enforced by seizure or legal process. This, however, does not seem reasonable. Bearers of dispatches. 157. Bearers of dispatclies to or from a public min- ister, provided witti passports, or other evidence of tlieir character, ' have the same privileges as members of his family accompanying him, for such length of time as may be necessary to enable them to perform their du- ties as such." ' Refter, § 204. ' Lawrence! s Wheaton, p. 417 ; 3 Phill. Int. Load, 196, § 186. Reparation for violence to property. 158. The nation within whose jurisdiction an act of violence is committed upon the exempt property of a public minister, is bound to make reparation therefor, although done by a person who was at the time igno- rant of its character. In United States ». Hand, ^Washington's U. 8. Gircuit Gt. Sep., p. 435, it was held, that an attack upon a minister's house is not a crime by the law of nations, unless the aggressor knew that it was the domicil of the minister. Such ignorance would be no excuse for an assault upon his person. United States «. Liddle, 2 Id. , 210 ; United States v. Ortega, 4 Id., 537 ; United States «. Benner, 1 Baldwin's Rep., 334. To the con- trary, Heffter, § 304 ; VaUeVs Law-of Nations, Bk. IV., ch. XVII., § 83. 58 OTJXLIlfES OF AN CHAPTER XIII. CONSULS. Section I. General provisions. II. Authorization. III. I'owers. IV. Immunities. SECTION I. QBNBBAL PBOTISIONS. Abticle 159. " Consul " defined. 160. Classes of consuls. " Consul " defined. 159. A consul is an agent appointed, by authority of one nation, to reside witMn the territory of another nation, for the purpose of facilitating commerce. The word "consul," as used in this Code, designates any person empowered to exercise, for the time being, the consular functions. Glasses of consuls. 160. The various classes of consuls, and their relative rank and powers, are fixed by their respective nations. It is hardly necessary to define in this Code a fixed scheme of classifi- cation for consular officers, any further than the distinctions between principal and subordinate officers, and between temporary and perma- nent officers, are recognized in the following Articles : The consular body in Prance is composed of ; 1. Consuls-General ; 2. Consuls of the. first and second class ; 3. Consular pupils, {elmes consuls.) See Report of Mr. Bigelow, Feb., 1864, quoted in United States Consular Regulations, (1868,) p. 179, note. By the United States Oonsula/r Begulations, (1870,') Art. I., ^ 1^ the Con- sular service of the United States consists of the following officers • Agents and Consuls General ; Consuls General ; Vlce-Consuls General INTEEIirATIOlirAL CODE. 59 Deputy Consuls Genera] ; Consuls; Vice-Consuls; Deputy Consuls ; Consular Agents ; Commercial Agents ; Vice- Commercial Agents ; Con- sular Clerks ; and Office Clerks. Agents and Consuls General, Consuls General, Consuls and Commer- cial Agents, are full, principal and permanent Consular Officers, as dis- tinguished from subordinates and substitutes. Deputy Consuls' and Consular Agents are Consular Officers subordinate to such principals, exercising the powers and performing the duties within the limits of their Consulates ; the former at the same ports or places, and the latter at ports or places diflFerent from those at which such prin- cipals are located. Vice-Consuls General, Vice-Consuls and Vice-Commercial Agents are Consular Officers wlio are substituted temporarily to fill tbe places of Consuls-General, Consuls or Commercial Agents, when they are tempora- rily absent or relieved from duty. Consular Clerks are recognized by the Act of Congress, June 30, 1864, 13 U. 8. Stat, at L., p. 189, § 3. The class of Office Clerks is authorized only in unsalaried Consulates. The class of Consular Pupils is recognized by the consular convention between the United States and France, Feb. 33, 1853, 10 U. 8. 8tat. at L., (Tr.,) 114, 131 ; by which convention, and by that between France and Brazil, Dec. 10, 1860, (8 Be Clercq, 153, Art. II.,) it is provided that Con- sular pupils shall enjoy the same privileges and immunities of the per- son as Consuls, &c. Commercial Agents are peculiar to the service of the United States, and seem to be employed in lieu of Consuls, either for reasons of con- venience in the formalities of appointment ; or, to avoid the necessity of recognizing a de facto government, by requesting an exequatur. U. 8. Consular Regulations, (1868,) pp. 156-8. By Article 169, the immunities of Consuls would be confined to those holding an exequatur. " By whatever name," says Halleck, {Intern. Law, p. 241, § 8,) " these officers are designated, their powers and duties in Christian countries are essentially the saijie." eO OUTLINES OF AN SECTION II. AUTHORIZATION OP CONSULS. Aeticlb 161. Duty of nations to receive consuls. 163. Exclusion of consuls. 163. Forbidding consuls to engage in business. 164. Appointment of subordinates. 165. Commission required. ■ 166. Formal act of permission required. 167. Exception as to temporary consuls. 168. Notifying appointment to local autborities. 169. Notifying permission. Ditty of nations to receive consuls. 161. Any nation may appoint consuls in all tlie ports, cities and places of any other nation ; subject to the right of the latter to exclude the consuls of all nations whatever' from places where it may not be convenient to recognize such officers.'' Convention between tbe United States and Italy, Feb. 8, 1868, 15 U.S. Stat. atL., (Tr.,) 185, Art. I. ; and other treaties of the United States. Consular convention between France and Austria, Deo. 11, 1866, 9 De Glercq, 669, Art. I. Treaty of friendsbip, commerce and navigation between France and Honduras, Feb. 33, 1856, Art. XIX., 7 De Glercq, p. 10. New Granada, May 15, 1856, " XXIII., 7 itJ., 103. And otter treaties of France. 1 By this provision, the nations uniting in this Code would not be ex- cluded from any ports in other such nations to which consuls from any nations, whether parties to the Code or not, are admitted. This is the principle of the tr^ties. '' Exclusion in case of war is provided for in Book Second of this Code. Bxclusion of consuls. 162. A nation may withdraw its permission from the consuls of all nations whatever, at any place, upon communicating the reasons for so doing to the nations parties to this Code, whose consuls are thereby ex- cluded. Suggested by the treaty of friendship, commerce and navigation be- tween France and Peru, March 9, 1861, Art. XXX., 8 De Glercq, 193. INTERNATIONAL CODE. 61 Forbidding consuls to engage in business. 163. A nation may at any time forbid consuls re- ceived by it to engage in business. The Frencli law forbids the consuls of Prance to carry on any business, and it skonld seem proper to reserve the right to a nation receiving con- suls to impose similar restrictions. Ouide Pratique des Consulats, vol. 1, p. 66. Appointment of subordinates. 164. A nation may anthorize its consuls,' resident within the territory of another nation, or its public ministers" accredited thereto, to appoint vice-consuls, and other subordinate or temporary consular officers, and to remove the same.' 1 Convention between the United States and France, Feb. 23, 1853, Art. V., 10 U. S. Stat, at L., (Tr.,) 114. Italy, Feb. 8,1868, " VITI., 15 /d, (Tr,,) 185. Belgium, Dec. 5,1868, " Vlll., f/. & CVns. iJ^S'., (1870,) «![ 500. Consular convention between France and Austria, Dec. 11, 1866, Art. VII., 9 De Clercq. p. 669. Portugal, July 11, 1866, " IV., 9 Id., 583. • '■' Treaty of friendship, commerce and navigation between France and Peru, March 9,- 1861, 8 De Clercq, 193 ; Instructions to Diplomatic Agents of United States, Art. XXIV. 3 The power of removal is not found to be expressly sanctioned in the books ; but it seems proper that the tenure of such subordinate otpcers should be subject to the pleasure of the appointing power. Commission required. 165. A consul must produce a suitable commission from the authority by which he is appointed. 3 Pldllimore, Intern. Law, pp. 240, 241. The commissions of vice-consuls and consular agents, appointed by a consul or consul-general, are issued by the latter, according to the treaty between the United States and Italy, Feb. 8, 1868, 15 XT. S. Stat, at L., (Tr.,) 185, Art. VIII. Formal act of permission required. ^ . 166. A consul can perform no official act until he has received ' from the nation of his residence a formal act of permission.' Such permission, when issued, must be free of charge.' ' Halleck, Int. Law, p. 243, § 4 ; Bluntschli, Droit Int. Cod., § 246, note. Treaty between the United States and Honduras, July 4, 1864,13 U. S. Stat, at L., 699, Art. X. The United States Consular Requlations, (1868.) Italy, Feb. 8, 1868, Art. Denmark, April 26, 1836, " France, Feb. 33, 1853, " Belgium, Dec. 5, 1868, " 62 OUTLINES OF AN pp. 189, 190, on this point, sanction his acting as commercial ageut, by consent of the local authorities, before receipt of his exequatur. ' Exequatur. 2 Phill. Int. Law, 341. This is in various forms in different countries. Lawrence's Wheaton, p. 433, note 143. The more common form oi exequatur in use in France, England, Spain, Italy, the United States, Brazil, &c., is by letters patent signed by the executive head of the nation, and countersigned by the minister of foreign affairs. In other countries, as in Russia and Denmark, the con- sul simply receives notice that he is recognized, and that the necessary orders have been given to the local authorities, at his residence. In Austria, exequatur is simply written upon his commission, and authenti- cated by the Emperor's seal. Guide Pratique des Gonsulats, vol. 1, p. 134. The exequaturs of French consuls are asked for and sent to their des- tination by the French minister accredited to the nation of the consul's residence. Guide Pr. des Cons., vol. 1, p. 135. ^ By the general usage, exequaturs are issued free of charge. They are required to be furnished free of charge, by the treaty between the United States and , II., 15 U. 8. Stat, at Large, {Tr.,) 185. . IX., 9, Id., 343. I., 10 it?., {Tr.,) 115. See 8 /d!.,106. II., U. 8. Cons. Reg., (1870,) l 500. New Granada, May 5,1850, " II., 10 XT. 8. Siat. at L.,QO(). Portugal imposes the same charge as is required by the nation of the consul in question. England, - Italy, Spain and Brazil impose charges ranging from forty to four hundred and fifty francs. Guide Pr. des Gons., vol 1, p. 138. JSxcepUon as to temporary consuls. 167. The last two articles do not apply to subordinate officers temporarily acting in the cases authorized by article 106. The French rule requires an exequatur for the consular agents commis- sioned by consuls, but not for consular pupils, chancellors, interpreters, clerks, or other secondary officers, nor for temporary incumbents dis- charging the functions of the office during vacancy. Guide Pratique des Consulats, vol. 1, p. 137. Notifying appointment to local authorities. 168. A consul,' on arriving at his post or receiving his commission there, must notify his appointment to the authorities of the city port or place constituting his district. The appointment of a deputy consul or consular agent must be noti- ned to the local authorities of the place where he is to act. Without their recognition of his appointment, it would be improper for a deputy- INTERNATIONAL CODE. 63 consul to communicate officially with them. United States Consular Regulations, (1868,) p. 154. Notifying permission. 169. A consul receiving a formal act of permission, must notify the same to the authorities raentioned in the last article. ' Prom the time of such notification only, he is entitled to the immunities provided in this Chapter." ' The treaty of friendship, commerce and navigation between Prance and Peru, March 9, 1861, Art. XXX., (8 Be Clercq, 198,) requires that con- suls, vice-consuls, or simple consular agents, must also notify their ap- pointment to the local authorities of the place of their exequatur. It is the usage of some governments to give this notice to the local authori- ties themselves, so that the consul is not charged with the duty. Guide Pr. des Cons., vol. 1, p. 135. ' On the exhibition of the exequatur, consuls shall enjoy the rights, prerogatives and immunities which are granted, Convention between the United States and Italy, Feb. 8, 1868, 15 U. 8. Stat, at La/rge, 185, Art. II. SECTION III. POWEKS OF CONSULS. Abticlb 170. Powers conferred or defined by this Code. 171. Protection of members of friendly nation. 172. Non-contentious jurisdiction. 173. Other powers may be conferred. 174. Certified copies of consular acts. 175. Authority presumed. 176. Protection of rights, and complaints against wrongs. 177. Diplomatic character. 178. Termination of powers. 179. Powers not terminated by change of government. Powers conferred or defined hy this Code. 170. A consul has power : 1. In reference to deserters, in the cases and to the extent mentioned in Section II. respecting Extradi- tion OF Deserters, of Chapter XVIII., entitled Ex- tradition ; 2. In reference to the administration of estates, in the 64 OTTTLINES OF AW cases and to the extent mentioned in Chapter XXVI., entitled Rights of Pkoperty ; 3. In reference to wrecks, in the cases and to the ex- tent memtioned in Chapter XXYII., entitled Wrecks ; 4. In reference to marriage, in the cases and to the extent mentioned in the Chapter entitled Marriage, of the Title respecting The Coitoitiow of Persons, in Part v., concerning Private Rights of Persons ( 5. In reference to the sale .of ships and adjustment of average, in the cases and to the extent mentioned iu the article entitled Authorizing Sale of Wrecked Prop- erty, in Chapter XXVII., concerning Wrecks and in the article respecting Consular Power, in Chapter XXXIV., entitled G-eneral Average ; 6. In reference to judicial proceedings affecting mem- bers of his nation, in the cases and to the extent men- tioned in the article respecting Power of consuls to ap- pear for members of his nation, in the Title concern-' ing Judicial Power, of Part VI., entitled Adminis- TRATiON OF Justice ; and, 7. In reference to controversies, order and discipline on board ship, in the cases and to the extent mentioned in the article respecting Judicial power of consuls, in the Title concerning Judicial Power, of Part VI., en- titled Administration of Justice. Protection of members of friendly nation. 171. A consul may exercise the powers mentioned in the last article, for the protection of the rights of per- son and property of members of any friendly nation whatever, which has no public agent at the same place. Chiide Pratique des Gonsulats, vol. 1, p. 376. The power does not extend to ordinary notarial acts. Non-contentious jurisdiction. 172. A consul has power, subject to such qualihca- tions as may be contained in the laws or instructions of his government, to take and authenticate, at any place within his district : 1. Affidavit and depositions by any inmate of a ship INTEKNATIONAL CODE. 65 of his nation, or by any member of his nation and af- fidavits and depositions by any person whatever, af- fecting the interests of a member of his nation ; ' 2. Contracts, transfers, or other instrnments to which a member or domiciled resident ' of his nation is a party ; 3. Wills made by members of his nation, or which, by the provisions of this Code, maybe made according to the law of such nation ; 4. Contracts and transactions by or between any parties whomsoever, which relate to property situated or transactions to be had within the jurisdiction of the consul's nation; 5. Protests, declarations, and other notarial acts affecting his nation, oj members, or domiciled residents thereof, such as a notary public within his nation may perform ; ' and also, 6. To execute commissions,* issued out of the courts of his nation, for taking the testimony of witnesses withlri his district ; and for this purpose he shall have the right to call upon the local authorities of his dis- trict to compel the attendance of witnesses and their depositions. The first four subdivisions are suggested by treaties, of whicb the fol- lowing will serve as examples. The provision in the treaty between the United States and Italy, on this subject, (15 U. S. Stat, at L., {Tr.,) 185, Art. X.,) is to the following effect : Consuls-general, consuls, vice-consuls and consular agents may take, at their offices, at their private residences, residence of the parties, or on board ship, the depositions of the captains and crews of vessels of theii own country, of passengers on board of them, and of any other citizen or subject of their nation. They may also receive, at their ofSces, conform- ably to the laws and regulations of their country, all contracts between the citizens and subjects of their country, and the citizens, subjects, or •other inhabitants of the country where they reside, and even all contracts between the latter, provided they relate to property situated or to busi- ness to be transacted in the territory of the nation to which such consular officer may belong. Article VII. of the consular convention between Prance and Portugal, July 11, 1866, (9 De GUrcq, 583,) provides that : Consuls and their deputies may take, at the consulate, or at the resi- ■dence of the parties, or on board vessels, declarations and other acts 5 66 OUTJ^IKES OF AN •which the masters, crew and servants, passengers and members of their nation wish to make or perform, including testaments, and all other nota- rial acts and contracts of every nature. It also provides, that such acts shall be drawn up in the form required by the laws of the state of which the consul is a member, subject, how- ever, to compliance with all the formalities required by the law of the country where the act is to receive its execution ; while, if the act has for its object a transaction affecting movables situated in the country where the consul resides, it ought to be drawn up in the forms required and according to the provisions of the law of that country. By the consular convention between France and Austria, 11 December, 1866, (9 De Clercg, p. 669, Art. IX.,) the acts and transactions which consuls may thus take are defined somewhat differently, as including declarations which masters of vessels, &o., and members of their country wish to make ; also all testamentary dispositions by members of their nation, and all other acts of civU right which concern them ; also simple acts conven- tional between one or more of their own nationality and other persons of the country in which tliey reside. The consular convention between France and Brazil, December 10, 1860, (8 De Glercg, 153, Art. VI.,) provides, that when these transactions relate to real property situated within the country, a competent notary public shall be called in to unite in the authentication, and to sign the same together with the clerk or consular agent, in order to render the act valid. See United States Consular Regulations, (1870,) Tf 33, and treaties in Appendix No. 1. ' United States Consular Regulations, (1870,) Tf 338. ^ Since the law of the domicil may sometimes apply to the transaction, the rule should be extended to include the acts of domiciled residents. ' United States Consular Regulations, (1868,) p. 280. ' It is stated in the United States Consular RegulationSi (1870,) If 308, that "in such cases the consular officer does not act in his quality of an Agent of the Federal Government, but simply as a citizen of the United States whose local position and character render him available to his fel low-citizens for such services as might have been rendered by a private individual." This method of taking depositions, in a foreign country, has always been familiar practice in the courts of Admiralty ; and it should seem proper to extend the power to all courts authorized by the consul's nation. Some of the States of the American Union have made provision by law for the taking of depositions, to be used in suits pending in other States by bringing the deponent within the operation of their own statute a^&vast perjury ; and national comity seems to require the enactment of ■similar provisions in all countries. Other powers may he conferred. 173. A nation may authorize its consuls : INTERNATIONAL CODE. 67 1. To issue passports ' to its own members, but to no others ; 2. To sanction and verify tbe emancipation of minors ; " and, 3. To do any other act consistent with the provisions of this Code, or special compact, for the facilitation of commerce ; the promotion of the lawful interests of his nation, and those of its members or domiciled resi- dents ; and the protection of property bearing its national character ; subject, however, to the control of the nation in which the consul resides. ' As provided m the articles on Passports and Safe-conducts, and Bffeci of Passports, in Section 1, as to Rights of Residence, of Chapter XXV., entitled Peksonai, Rights of Foreigners. By the American rule, this power is not exercised by consuls, except in the absence of a public minister. And this comports with the original usage. . Salleck, p. 353, § 15. Bluntschli, however, (§351, note,) thinks the consul the most approDriate of all officers to be vested with the power. 2 Bluntschli, % 366. Certified copies of consular acts. \74. A copy of any instrument which was made or authenticated by virtue of the consular powers, when certified ' to be a copy by the consul, under his ofiicial seal, is admissible before all tribunals and officers as suflBcient primary'' evidence of the original. Translations into the language of the nation of the consul' s residence ' of any such instruments, or of offi- cial documents of his own nation, of every nature, certified in like manner to be translations, are in like manner admissible within the nation of his residence, and with the same effect. ' Consular convention between France and Portugal, July 11,1866, Art.VIL, 9 Be Glercq, p. 583. Austria, Dec. 11, 1866 " IX., 9 Id., 669. And other French treaties. ' The consular convention between France and Portugal, July 11, 1866, (9 Be Glercq, p. 583, Art. IV.,) and tjie treaty between the United States and Italy, (15 U. Stat, at L., (Tr.,) 185,)' make such certified copies evi- dence equally with the originals. See, also, treaty of friendship, commerce and navigation between France 68 OUTLINES OF AIT and Peru, Maroli 9, 1861, Art. XXXIX., 8 Be Glereq, 193 ; and the con. sular convention between France and Brazil, December 10, 1860, 8 JDt CUrcq, p. 153, Art. VI. The French, treaties contain a provision, that in case of doubt arising as to the authenticity of a certified copy of such transaction, the consular oiBcer must permit its comparison with the original, on the request of any person interested, and allow him to be present at such comparison. ' By the treaty between the United States and Belgium, December 5, 1868, Art. IX., {TJ. 8. Com. Beg., (1870,) f 500,) the original and copies of such official documents, when duly authenticated, are made receivable as legal documents in the courts of justice of each of the countries. But it does not seem advisable to extend the rule so far. Authority presumed. 175. Consular acts are presumed to be authorized, by tlie instructions of fhe consuls, until the contrary appears. Protection of rights, and complaints againstwrongs. 176. A cons-ul may apply to the authorities, whether judicial or executive, within his district, upon any in- fraction of the provisions of this Code, or special com- pact between the two nations, affecting his nation on a subject within the scope of his powers ; ' or affecting its members or domiciled residents ; ' or for the purpose of protecting the interests of such nation or per- sons. If protection and redress cannot be thus obtained, and there is no public minister of such nation ac- credited to the government of the country, whether a nation or a colony or transmarine province,' in which he resides, he may for the same purposes address such government directly. Convention or treaty between the United States and Italy, February 8, 1868, 15 V. 8. Stat at L., (Tr.,) 185, Art. IX. See TTnited States Consular Regulations, (1870,) T 31, and treaties in Appendix No. 1 . Coijsular convention between Prance and Austria, Dec. 11, 1866, Art. VIII., 9 De Gleraq, p. 669. Brazil, Dec. 10, 1860, " IV., 8 Id., p. 153. Portugal, July 11, 1866, " VI., 9 Id., p. 583. The two latter contain a further provision, that the consuls shall have the right to take all steps which they may judge necessary to obtain full and prompt justice. INTERNATIONAL CODE. 69 See, also, treaty of friendship, commerce and navigation between France and Peru, March 9, 1861, 8 Be Glereq, 193, Art. XL. ' He has not general power to vindicate the prerogatives of his nation ; e. g., to interpose a claim on its behalf in a court of prize, for a violation of its neutral territory. The Anne, 3 Wheaton's IT. S. Supreme Ct. Sep., p. 485. ^ He may intervene in court for the protection of the interests of mem- bers of his nation, without special authority. Bello Corrunnes, 6 Wheaton's U. 8. Sup. Ct. Bep., 153 ; London Packet, 1 Mason's U. 8. Oirc. Gt. Sep., 14 ; Eobson v. The Huntress, 3 Wallace Jr.'s U. S. Gira. Gt. Bep., 59. ' This right -to address the governor of a colony or transmarine prov- ince, is authorized by treaty between the United States and the great pashalics of the Turkish empire ; and by a recent treaty between the United States and the Netherlands, Aug. 26, 1852, 10 U. S. Stat, at Large, (Tr.,) 66. And an extension of the rule to other European nations is sug- gested in United States Consular Begulations, (1868,) pp. 35, 36. Apart from such a rule as this, the consul, in case of grave difficulties arising between him and any authorities of the nation of his residence, is limited to protesting, and should meanwhile remain in his ordinary functions, and await instructions from his government. Ghiide Pratique des Oonsulats, vol. 1, p. 149. Diplomatic character. \Yl. A consul lias no other diplomatic powers than those mentioned in this Section. United States Consular Begulations, (1870,) pp. 147, 148 ; Ralleek, p. 242, § 5 ; The Anne, 8 Wheaton's U. S. Supreme Ct. Bep., 435. By the United States Instructions to Diplomatie Agents, (§ 23,) consuls are under the direction of the minister or charge d'affaires of the United States, in the country where they respectively reside ; and in the transac- tion of their official duties they can only address the government of that country through such officer. Several treaties, however, recognize the right to address the government directly in some cases. See note 3, to the last article. Bluntschli, (§ 250,) regards consuls as diplomatic agents when charged with watching the execution of commercial treaties, or with reporting on the state of the country where they reside, &c., &o. Termination of powers. 178. The powers of a consul are terminated, either : 1. By his death ; 2. If appointed for a fixed term, by the expiration of the term ; 3. If serving temporarily, by the resumption of duty by his chief, or by appointment of a new chief ; 4. By the revocation of his appointment by the na- 70 outltjs^es of an tion or authority by wMch it was made, and notice thereof to the consul, to the nation of his residence, and to the local authorities ; 5. By his voluntary withdrawal at any time, and notice thereof to the nation of his residence, and to the local authorities ; or, 6. By revocation of the permission granted by such nation, and notice thereof to the consul, and to his na- tion. ' ' If the reasons are personal, and for whioh. permission to act might have been refused, according to Article 99, it is sufficient to state the fact, without mentioning particulars. Treaty or Convention between the United States and France, February 33, 1853, Art. I., 10 U. 8. Stat, at L., 992. The Netherlands, January 33, 1855, " III., 10 U., 1150. New Granada, May 4, 1850, " II., 10 Id., 900. And see note to Article 935. Exclusion in case of war is provided for in Book Second of this Code. Powers not terminated hy change of government. 179. Notwithstanding a change in the government of either nation, or a cessation of diplomatic intercourse, ' the powers of a consul continue until revoked as pro- vided in the last article. ' See Guide Pr. des Cons., v. 1, p. 149. Consuls not being representatives of the nation, their functions may be continued in such cases. SECTION IV. IMMTJNITIBS OF CONSTJIiS. As to their immunities generally, consuls may be considered as of three classes : 1. Those who neither owe allegiance to, nor have a domicil in, the na- tion of their residence ; 3. Those who do not owe allegiance to, but have a domicil in, such na- tion ; the existence of a domicil being indicated either by previous volun- tary residenfce, or by engaging in trade or holdii^g property ; and, 3. Those who both owe allegiance to, and have a domicil in, such na- tion. INTEKWATIONAL CODE. Tl Halleck, without defining these classes so precisely as to avoid am- biguity in some cases, states the existing doctrine of exemption as follows : Thoge who owe no allegiance, hold no real property, engage in no busi- ness, and have no domicil in the country, have the personal exemptions and disabilities of aliens who are mere sojourners. Those who hold real estate, engage in business, and have a fixed resi- dence.are considered as foreigners domiciled ; and the consular privileges do not extend to their property or trade so as to change its national character. Those who owe allegiance can claim no exemptions enjoyed by others in virtu'e of alienage, but are entitled to those which pertain to the oflfice and are necessary for the performance of its duties, unless they are ex- cluded by conditions imposed in the exequatur. In view of this classification, and the fact that the ground of consular immunity is simply the facilitation of the consular functions, the follow- ing provisions are framed to prescribe an uniform rule of personal immu- nities in whatever can affect the exercise of consular functions, subject only to such exemptions as may be created by the conditions imposed in the exequatur ; while, on the other hand, in all that does not hinder the exercise of consular functions, such as taxation, searches of papers not belonging to the afiTairs of the consulate, attendance as witnesses within a convenient distance, consuls, of whatever class, are left to the rules applicable to their private status, whether that of transient foreigners, of domiciled foreigners, of property owners and traders, or of members owing allegiance. This is, substantially ,the doctrine which was declared by Art. XVI. of the treaty between the United States and Sardinia, (1838,) 8 U. 8. Stat, at X.,p. 518. Larger immunities have been secured by special compact in the case of non-Christian powers. Some of the earlier treaties exempted consuls from payment of duties on goods brought in for use of their houses and families. Treaty between the United States and Algiers, 1795, 1815 and 1816, 8 U. a. Stat, at L., 136, 227, and 247. The usual provision of the treaties is to the effect that if consuls exer- cise commerce, they shall be subjected to the same laws and usages to which private individuals of their nation are subject in the same place. Treaty between the United States and Hanover, (1840,) Art. VI. 8 U. -8. Stat, at L., 556 Hanover, (1846.) ' IX. 9 Id., (Tr.,) 60. New Granada, (1846,) ' ' XXXII. 9 Td., {Tr.,) 94. Prussia, (1799,) ' ' XXV, 8 Id., 176. Prussia, (1838,) ' X. 8 Id., 383. Russia, (1833,) ' • VIII. 8 Id., 448. Austria, (1848,) • IV. 9 Id., {tr.,) 154. The Two Sicilies (1845,) ' ' VIII. 9 Id., {Tr.,) 18. Hawaiian Islands (1849,) ' X. 9 Id., {Tr.,) 181. 72 OUTLIJSTES OF AN Treaty betweeen the United States and Austria, (1829,) Art. X., 8 IT. 8. Stat, at L., 400. Portugal, (1840.) " X, 8 /(?., 564. Sardinia, (1838,) " XV., 8 Jd, 518, modified by adding " to which private individuals of their nation are subject in the same place, in respect of their eommeroial transactions." The treaty between the United States and France, 1853, (10 U. 8. 8tat. at L., (Tr.,) 114, Art. II.,) gives absolute exemption from direct and per- sonal taxation : but it provides that if consuls are citizens of the country of residence ; if they are or become owners of property there, or engage in commerce, they are subject to the same taxes, &c., and, with the reserv- ation of the treatment granted to commercial agents, to the same juris diction as citizens owning property or engaged in trade. The treaty between the United States and Guatemala, 1849, (10 U. 8. Stat, at L., (Tr.,) 14, Art. XXX.,) and others, also except taxes payable on account of property as well as commerce, for which they are taxable like other inhabitants. In addition to the treaties cited in this place, others, chiefly earlier in date, contain provisions more or less similar. Such may be found in Se Giercq, vol.5, pp. 603, 614, 632; Id., vol. 6, pp. 39, 157, 185, 383,390, 303 308, 551 ; Id., vol. 7, pp. 179, 322, 363, 586; and in 10 U. 8. 8tat at L., {Tr.,) pp. 45, 80, 95 ; 11 Id., 591, 650 ; 12 Id., 1020, 1157. See the United States Consular Regulations, (1870,) If 39, and treaties in App. No. 1 . For a statement of the immunities now allowed by European nations to consuls, see Guide Pratique des Oonsulats, vol. 1, p. 13. Akxiclb 180. Right of passage. 181. Immunities of consuls. 183. Duty as witnesses. 183. Books, papers, &c., not to be seized. 184. Dwelling and office inviolable. 185. General subjection to local law. RigM of passage. 1-80. A consul, who is not a domiciled member of the nation of his residence, ' if he has received the formal act of permission required by article 166, has the right of passage through the territory of the nation of his residence, for the purpose of leaving the country; which right continues for a reasonable time after his powers have terminated. Bluntschli, § 375 ; Viveash «. Becker, 8 Maide Selwyn's Sep. , 397, cited in 3 PMU. Int. Law, pp. 360, 368. ' A person having a foreign domicil before appointment, does not lose it by residing as consul ; and, therefore, it seems that his right of return to his domicil should be secured equally as if he were a foreigner. INTERNATIONAL CODE. 73 Immunities of consuls. 181. A consul, autliorized as provided in the last article," is entitled to the following immunities : 1. From military billetings " in Ms consular dwell- ing ' and office ; * 2. From military and naval service ' of every kind ; 3. From jury and j)olice duty, and all other civil service ; ° and, 4. From arrest on civil process in all cases.' Taxation, of any kind, is not included among tlie immunities allowed by this Code, for reasons stated in the introductory note to this section. ' It should seem proper to require an exequatur in all oases, as a found- ation for the consular immunities ; (see Articles 166-169 ;) though this is not now an universal rule. The 6rst consular convention between the United States and France, 1788, (8 U. 8. Stat, at L., (Tr.,) 106,) extended the general immunities to vice-consuls and secretaries, though the latter were not required to have an exequatur. The convention of 1853, however, (10 Id., {Tr.,) 116, Art. II.,) secures the same to consular pupils and to secretaries, &c., discharg- ing the consular duties ad interim. The treaty between the United States and Hayti, (Nov. 3, 1864,) 13 U. 8. 8tat. at L., 711, Art. XXXV., extends the immunity from taxes to per- sons, not being citizens, attached to the service of consuls. And to the same efEect, with the additional exemption from public service, is the treaty between the United States and Brazil, 1838, 8 Id., 397. See, also, the treaty between the United States and 8 U. 8. 8tat. at L., 318. 8 Id., 343. 8 Id., 432. 8 JcZ., 440. 8 Id., 494. 8 Id., 480. 9 Id , {Tr.,) 94. 10 Id., {Tr.,) 14. In order that a nation may retain full jurisdiction over its own mem- bers, when appointed consuls by foreign nations, a waiver of immunity, as a condition of granting the exequatur, should be required. 2 3 PhUl. Int. Lam, p. 344. Treaty between the United States and Italy, Feb. 8, 1868, Art. III., 15 XT. 8. Stat, at L., {Tr.,) 185. Hayti, Nov. 3, 1864, " XXXV., 13 Id., 711. 3 Halleck, p. 344, § 8. * The authorities usually speak of the consular dwelling only ; but as the dwelling is sometimes separate from the office, the latter is specially mentioned, for it is also entitled to exemption. ^Martens says, that if necessary, the consul may be required to provide Colombia, 1834, Denmark, 1836, Mexico, 1831, Chili, 1833, Peru-Bolivia, 1836, Venezuela, 1836, New Granada, 1846; Guatemala, 1849, 74 OUTLINES OF AN a substitute ; but it should seem better to disallow this qualification. Quide Dip., tome 1, § 74 ; cited in Halleok, pp. 348, 349. See United States Consular Regulations, (1870,) If 30 ; and treaties in Appendix No. 1. « Halleek, pp. 348, 349. ' The existing rule only extends this exemption to consuls who do not engage in commerce. 2 PJiill. Int. Law, 268. The consular conventions between Prance and Brazil, Dec. 10, 1860, 8 Be Oleroq, 1S3. Austria, Dec. 11, 1866, 9 Id., 669, Art. II. Portugal, July 11, 1866, 9 Id., 583, Art. II. provide that arrest of the person can only be applied in civil cases in causes of action of a commercial nature, where the consul is engaged in commerce. But it is believed that the necessity for an efficient performance of con- sular functions, and harmony with the general tendency restricting im- prisonment in civil cases, require the adoption of the rule in the text. Arrest in criminal cases is generally sanctioned by the authorities, and there seems to be good reason for allowing it, notwithstanding the inter- ruption of the consular functions thereby caused. It is an important question, however, whether arrest should be allowed for crimes only, or also for misdemeanors, (deMia.) The recent treaty between the United States and Italy allows of arrest only for ofEenses which are crimes by the local law, and punishable as such. The treaty between the United States and France, 1853, (10 U. 8. Stat, at L., (Tr.,) 114, Art. II.,) is to the same efiect. It is understood, however, that the French law generally holds foreign consuls amenable in oases of delit. The latter rule seems preferable, and, therefore, no exemption in crim- nal cases is specified. See U. 8. Cons. Reg., (1870,) % 37, and treaties in App. No. 1. Duty as witnesses. 182. A consul may be required to attend as a witness in the tribunals of the nation of Ms residence, within five leagues from the consular office, in the same man- ner as any other witness. When the testimony of a consul is recLuired for a tribunal beyond that distance, it must be taken in writ- ing, at the consular office, in the manner prescribed by the law of the place for taking depositions. This is suggested as, on the whole, a. more reasonable and convenient rule than that embodied in many of the treaties. The convention between the United States and Italy, cited above, pro- vides that no consular officer, who is a member of the nation by which he was appointed, and who is not engaged in business, shall be compelled to INTERIiTATIOIirAL CODE. 75 appear as a witness before the courts of the country where he resides. When the testimony of such consular oflicer is needed, he shall be invited in writing to appear in court ; and if unable to do so, his testimony shall be requested in writing, or to be taken orally, at his dwelling or office ; and it is the duty of the consular officers to comply with such requests without unnecessary delay. The same treaty also provides that in all criminal cases in which the constitution or laws of the nation secure to persons charged with crimes the attendance of witnesses 'in their favor, the appearance in court of a consular officer, when required as such witness, shall be demanded, with all possible regard for the consular dignity and the duties of his office. See United States Consular Regulations, (1870,) T[ 28 ; and treaties in Appendix No. 1. To similar effect is the treaty of friendship, commerce and navigation between Prance and Peru, March 9, 1861, Art. XLIIL, 8 De Olercq, 193. See, also, consular convention between France and Brazil, Dec. 10, 1860, Art. II., 8 De Glercq, 153. Austria, Dec. 11, 1866, " III., 9 iS., 669. Portugal, July 11, 1866, " II., 9 Id., 58S. That between France and Brazil, above, restricts this provision to con- sular officers and their clerks, who are memhers of the nation by which they are appointed. Books, papers, &c. , not to he seized. 183. The local authorities cannot seize, examine, or in any way interfere with, the books, papers or other prop- erty held by the consul, by virtue of his office. But a consul engaged in business must keep the books and papers relating thereto separate from those of the consulate ; and they may be examined in the same manner as papers of other persons ; except as pro- vided in the article entitled Searches and Seizures, in the Section concerning Rights of Residence, of Chapter XXY., entitled Peesowal Rights of Foreigners. United States Oonsula/r Regulations, (1870,) IT 25, and treaties in Appen- dix No. 1. By Article 109, an exception to this rule is recognized in the case of national emergencies affecting the existence of the nation. The treaty between the United States and Italy, 15 U. S. Stat, at L., {Tr.') 185, Art. VI., by which this article is suggested, exempts simply papers deposited in the consulate. See, also, 3 PMll. Int. Law, 345. To much the same offect is the treaty of friendship, commerce and nav- igation between France and Peru, March 9, 1861, 8 Be Glereq, 193, Art. XLV. ; and the consular convention between France and Portugal, July 11, 1866, 9 Id., 583, Art. V. 76 OUTLINES OF AN To the same effect, without, however, the last provision, is the consular convention between France and Austria, Dec. 11, 1866, Art. Y..9 De OUrcq, 669. BrazH, Dec. 10, 1860, " III., 8 Id., 153. And the treaty of friendship, commerce and navigation between France and Honduras, Feb. 33, 1856, 7 Id., 10, Art. XXI. Dwelling and office inmolable. 184. The consular dwelling and office are exempt from the jurisdiction of the nation of his residence,' but cannot be used as an asylum," except for the pro- tection of members of the consul's nation against inva- sions of rights secured to them by this Code,' or by special compact, or for the like protection of members of a nation on whose behalf his friendly offices are in- terposed. ' The convention between the United States and Italy, 15 JJ. 8. Stat, at L., (,Tr.,) 185, Art. VI., declares that the consular oiiices and dwellings shall be at all times inviolable, and the local authorities shall not, under any pretext, invade them. See, also, convention or treaty between the United States and Belgium, December 5, 1868, Art. VI., U. 8. Cons. Reg., (1870,) 1 500. France, February 23,1853, " III., 10 U. 8. 8tat. at L., 992. ' Convention between the United States and Italy, above, and the treaty of friendship, commerce and navigation between France and Peru, March 9, 1861, 8 Be Olercq, 193, Art. XLIV. 5 This exception seems reasonable, under any Code by which the rights of foreigners are defined. Lem, {Internationl Commercial Law, vol. 1, Intro., p. xii.,) says, that a " consulate is held to be the territory of the country which the consul " represents ; and therefore all deeds, and acts done within it, or under " the seal of the consulate, are held as done in England." The con- clusion is doubtless sound, but the reason assigned is questionable. The foregoing provisions would not confer any extra-territorial character on the consulate. General subjection to local law. 185. Except as provided in this Title, the consular office confers no exemption from the laws and jurisdic- tion of the country of the consul's residence. In case a consul is prosecuted, or punished, or deprived of the exercise of his functions, for an offense against the laws of the country of his resi- dence, the offended government must acquaint the consul's nation with its motives for having thus acted. INTEKNATI01S"AL CODE. 77 Treaty between the United States and Sweden & Norway, July 4, 1837,Art. XIII., 8 U. 8. Stat, at L., 346, Greece, Dec. 33, 1837, " XII., 8 Id. 498. Portugal, Aug. 36, 1840, " X., 8 Id., .560. Swiss Confederation, Nov. 35, 1850, " VII., TT. 8. Cons. Beg., (1870.) *f 696. Numerous treaties provide ttat consular officers engaged in commerce must submit to the same laws and regulations to which members of the nation in which they reside are required to submit in the same place in respect to the like business. See, for instance, the treaty of commerce and navigation between France and The free cities of Lubeck,Bre-) ,, , , .,„„^ . .„,„ men and Hamburg, \ '^^'"""'^ *' 1865, Art. XIX., 9 De Olercq. 187. Grand Duchy of Mecklenburg"] Schwerin — extended to the t ,^ - o„.. „„ Grand Duchy of Mecklen- f "^'"''^ ^' ^865, " XY.,QId., 395. burg Strelitz, J Russia, June 14, 1857, " XV., 7 Jd., 378. CHAPTEE XIV. COMMISSIONERS. Article 186. Commissioners. 187. Immunities of commissioners. Gommissioners. 186. Agents of intercourse other than those provided for in the last two chapters may be designated as Com- missioners. This designation is given by the United States to their resident diplo- matic officers in the Hawaiian Islands, Paraguay, &c. Lawrence's Wheaton. 587, note 134. But an agent, sent with credentials on public business, is by the law of nations a public minister, and the title of agent or commissioner makes no difference. VatteVs Law of Nations, Bk. 4, ch. 6, § 75. Immunities of commissioners. 187. Commissioners have only such immunities as the nation to which they are sent may choose to accord. Bluntschli, § 343 ; Kluber, §§ 170-173. 78 OUTLINES OP AW TITLE IV. INTERNATIONAL COMPACTS. The interpretation and eiTect of contracts by a nation with parties other than another nation, is provided for by the Chapter on Contracts, in Part v., entitled Private Eights of Pbrsons. See a discussion of the consequences of non-execution of the engage meets of governments relative to the payment of their public debt, in Bevuede Droit Intern, et de Legis. Comp., 1869, vol. 1, no. 3, p. 275. Chapter XV. Treaties. XVI. Informal Compacts. CHAPTER XY. TREATIES. Article 188. " Treaty " defined. 189. Capacity to conclude treaty. 190. Consent, how communicated. 191. Treaty by state in revolution. 193. Ratification, when necessary. 193. Ratification, when obligatory. 194. Notice of reasons of refusal to ratify. 195. Treaty negotiated contrary to minister's ■ full power. 196, 197. Time of taking effect. 198. Treaty interfering with third party. 199. What provisions of this Code .may be mod- ified by special treaty. 300. Demand of performance, when necessary, 301. Merger of preceding communications. 303. Extinguishment of obligations created by treaty. " Treaty'''' defined. 188. The term "treaty,"' as used in this Code, means a written" agreement between two or more INTERNATIOifAL CODE. 79 nations for tlie performance or omission of an act cre- ating, terminating, or otherwise affecting an interna- tional right " or relation. 'The term "conventions," which Wheaton, [Lawrence's ed., p. 460,) understands as restricted to executeij agreements, seems no longer to be used with any uniformity in this limited sense. '' Some authorities state that a treaty must be in writing. See Kliiber, Droit des Qens, § 143 ; and 2 PMUimore's International Law, p. 64, and note m. 3 More, ( Nouveau Droit International, part I., chs. 1-4,) thinks that a nation cannot by treaty part with any of its essential powers. Capacity to conclude treaty. 189. Any two nations can make a treaty. The ratification of a treaty is a recognition of the nation with which it is made. Laiorenee, Gommentaire sur Wheaton, p. 196. Consent, how communicated. 190. The consent of a nation to a treaty can be sig- nified with effect only in the form,' and through the executive or other department, authorized by its law," or through its public minister duly empowered. ' B. g., constitutional requirements providing for the concurrent action of several departments. Zluber, § 14^, p. 181, note, b; Lawrence's Wieaton, p. 453, note 151 ; Id., 457. ^ Heffter, Droit International, § 84. It is the practice of governments, in the drawing up of their treatie > with each other, to vary the order of naming the parties, and that of the signatures of the plenipotentiaries, in the counterparts of the same treaty, so that each party is first named, and its plenipotentiary signs first in the copy possessed and published by itself. And in treaties drawn up be- tween parties using different languages, and executed in both, each party is first named, and its plenipotentiary signs first, in the copy executed in its own language. Instructions to Diplomatic Agents of United States. §XX. In acts between several powers admitting the alternaZ, the order to be followed in signature is decided by lot. Protocol of Treaty of Vienna, Art. VIII., cited in Lawrence's WJieaton, p. 380. BluntscMi, {Droit Inter- national Oodifie, I 178,) says, that instead of this rule, that of the alpha- betic order of the initials of the several States is often followed. Treaty by state in revolution. 191. The executive or other department of a nation which is in a state of revolution, if such department is 80 OUTLINES OP AN not in the peaceable possession of its powers, can make temporary treaties only. Kluber, Droit des Gens, % 143, p. 181, note a. Ratiflcation, when necessary. 192. Ratification of a treaty by a nation is necessary to render it binding thereon in the following cases only: ' 1. Where such ratification is therein expressly made a condition ; 2. Where the treaty is conclnded by the executive or other department of the nation, and ratification there- of is, in such cases, required by its law ; ' or, 3. Where the treaty is concluded through a public minister of the nation who is not authorized to dis- pense with such ratification, or who, being thus author- ized, does not expressly dispense with the same.' ' Several authorities apparently contend that ratification is necessary in all cases ; Laiorence's Wheaton, p. 452, note 151 ; or at least in all cases of treaties signed by plenipotentiaries. Speech of M. Guizot, Moniteur, Feb. 1, 1843 ; 1 Ortolan, Diplomatie de la Mer, 85-89. The rule uniformly followed in Great Britain, is, tliat a treaty does not become absolutely binding upon the signataries until it has been ratified. Speech of Mr. Gladstone, in Parliament, Aug. 10, 1870. ^ Lawrence's Wheaton, p. 455. ^ 1 More, Nowo. Droit Intern., 476. Ratification is sometimes expressly dispensed with by a secret protocol annexed to the treaty, {Lawrence's Wheaton, p. 454,) and consequently forming part of it. It may be thought better to modify subdivision 3, by inserting " therein " before " expressly." MatiJicaUon, when obligatory. 193. A nation by whose public minister a treaty is concluded in conformity with his powers, is bound to ratify the same, if his powers contain an express agreement, authorized by the law of the nation, that it shall be ratified when so concluded ; unless by the terms of the treaty its ratification is optional with such nation ; or unless, before the time agreed on for its ratification, an event has occurred or been discovered which if occurring or discovered after INTBBNATIONAL CODE. 81 its ratification would authorize sucli nation to rescind or refuse to perform it. Notice of reasons of refusal to ratify. 194. Where ratification is refused pursuant to the provisions of the last article, notice of such refusal, stating the reasons thereof, must be forthwith given to the other parties to the treaty. Treaty negotiated contrary to minister'' sfull power. 195. The negotiation of a treaty by a public minister not in accordance with his powers ' creates no obliga- tion on the part of his nation to ratify it. ' Even if the full power contains a promise to ratify all his acts. Law- rence's Wheaion, p. 447. Time of talcing effect. 196. A treaty which is binding on a nation without ratification, is binding from the date of its signature, unless therein otherwise expressed. The same. , 197. A treaty which requires ratification binds the ratifying nation' from the time of ratification," unlfess therein otherwise expressed. ' The present rale makes ratification retroact as regards the nation, but mot as to persons and things within its jurisdiction. Lawrence' s Wheaton, p. 4-53, note 152. The Supreme Court of the United States, in the case of Jecker «. Magee, held, that the principle of relation which, as respects the rights of either government, regards a treaty as concluded from the date of its signature, ■does not apply to private rights under it. As affecting these, it is not considered as concluded but from the exchange of ratification. New York Transcript, August 18, 1870. ' This is the case, independently of any auxiliary legislation necessary to Carry the treaty into effect, unless otherwise provided therein. Law- renee'n Wheaton, p. 457. Treaty interfering with third party. 198. If a treaty interferes with the rights, under a pre-existing treaty, of a nation other than a party to the new treaty, it is, to the extent of the interfer- ence, valid, as to such nation, only so far as it submits to the execution thereof. Bluntachli, § 414. 6 83 , OUTLINES OJF AN What promsions of this Code may be modified by special treaty. 199. Any two or more nations may, by special com- pact, modify tlie application of any of the provisions of this Code, in respect to themselves, and persons and things within their exclusive jurisdiction, but not in respect to the other parties to the Code, or their mem- bers. No treaty between two or more nations should absolve either from ob- ligations to other nations created or defined by the Code. Demand of performance, when necessary. 200. Except in respect to an act therein stipulated to be performed at a certain time, the performance of a treaty must be demanded before any nation, party thereto, can be placed in default. Eeffter, § 94. Merger of preceding communications. 201. All communications, written or verbal, between the parties to a treaty, preceding its signature, and re- lating to the subject thereof, are merged in the treaty. This provision is from Lawrence's Wheaton, p. 443 ; extended to writ- ten communications, not referred to expressly, or by necessary impli- cation. Extinguishment of obligations created by treaty. 202. An obligation created by treaty is extinguished, either, 1. By its full performance ; or, 2. By renunciation of the party entitled to perform- ance ; or, 3. By the subsequent permanent impossibility of performance, without the fault of the party bound ; or, 4. By fulfillment of the conditions, or the expiration of the time, expressed in the treaty for its extinguish- ment ; ' or, 6. By breach of its conditions by the nation entitled to performance ; " or, 6. By rescission' of the treaty, through common consent. INTERNATIONAL COUii:. 83 ' The effect of changes iu form of government, and of division or an- nexation of nations, is more fully treated in Chapter III., respecting Per- PETUiTT. Eluber, § 145. ' The insertion of this clause recognizes the right of a party to a treaty to declare itself released from an obligation imposed thereby, vrhen the other party fails to fulfill the conditions of such obligation. This princi- ple is applicable to contracts, generally. Its application to treaties is, however, disputed ; it being claimed that no Power can set aside, amend, or modify treaty stipulations, by its own will, and without the consent of all the other contracting parties. In the matter of the Black Sea, Russia informed the parties to the Treaty of Paris,' (March 18-80, 1856,) that a breach of the stipulations for the neutralization of the Black Sea, entitled her to be released from the obligations contained in the treaty, to limit her naval forces to inconsid- erable dimensions ; and assented to a conference either for a, confirma- tion, or renewal, or modification of the stipulations of the treaty, or for its rescission through common consent. ' Wheaton, {Dana's ed., § 283,) adds, that treaties may be avoided upon the ground of the mutual error of the parties respecting a matter of fact. It should seem better, however, to leave this and the other cases of rescission to the rules applicable to controversies between nations. CHAPTER XVI. INFORMAL COMPACTS. Akticlb 203. Informal compacts may be made. 204. Ratification of written compacts made by unau- thorized agents. Informal compacts may be made. 203. Compacts, other than treaties, may be made in writing' between nations, without the formality of a treaty. ' Wheaton, {Laiorence's ed., -p. 443,) says, modern usage requires that verbal agreements should be reduced to writing. RatijicaUon of written compacts hy unauthorized aijents. 204. The consent of a nation to an agreement in writing, made on its behalf by a person not authorized, may be given expressly, or by acting under it as if duly concluded and ratified. Lawrence's Wheaton. p 442. 84 OUTLINES OF AN TITLE V. REMOVAL OF PERSONS. Chaptbe XVII. Asylum. XVIII. Extradition. CHAPTER XVII. ASTLUM. Aeticle 205. Right of asylum. 206. Exclusion of criminals. 307. Abuse of asylum. 308. Return. 309. Obtrusion of convicts, paupers, &c. JiigM of asylum. 205. ^o nation is boTind ' to surrender a person withia its exclusive jurisdiction" to any foreign power, except in cases provided for by this Code, or by special compact. ' Until recently, the obligation of a nation to deliver up criminals upon the demand of a foreign nation, has been a disputed point ; but now the weight of authority seems to be against it. Tmss, {Law of Nations, Part I., § 331,) states the rule substantially as above. See also Lawrence's Wheaton, on International Law, p. 333 ; and WooUey's International Law, § 79. BluntsohU, {Droit International Godifie, § 395,) says, the obligation to surrender exists only in the case of special treaties, or when the general safety demands it ; and in the latter case, it relates only to grave crimes, and demands by a nation whose penal system offers guarantees of impartiality and humanity. See also Section I., as to Extbadition of Cbiminals, of Chapter XVIII., entitled Extradition. ^ The right of asylum extends not only to the territory of the nation, but to other places within its exclusive jurisdiction, which are hereafter defined. The application of the rules proposed by the Code would solve INTEEWATIONAL CODE. 85 the vexed questions of refugees from ship to shore, and shore to ship, when arising between nations parties to the Code, in the following manner : Against a public armed ship, a demand for surrender could not be enforced : In the case of an unarmed ship, private or public, within the jurisdic- tion of a, nation, process of the nation could be executed on board, and therefore a deserter or criminal might be arrested, either for prosecution in the courts of the country, or for surrender to another nation, or its ships. In the case of deserters from ship to shore, application would have to be made to the local authorities, under the provisions of this Title. By the existing rule, which would, of course, still be applicable in the case of nations not parties to the Code, a demand for the surrender of a person escaping from a nation to a foreign ship within its waters, must first be made on the officer in command. If he refuse, and the ship is a public armed ship, redress must be sought from his government. If the ship be a private ship, application must be made, after such refusal, to the consul of his nation, or to the public armed ship of such nation sta- tioned at the port : and it is only when such application does not avail, that resort to force can be had. Guide Pratique des Oonsulats, vol. 2, p. 171 ; Ortolan, Regies Int. et Dipl. de la Mer, vol. 1, p. SOI. Exclusion of criminals. 206. No nation is bound to furnish an aslyum to criminals from foreign countries ; and it is for each gov- ernment, or its authorized officers/ to determine the cases, and manner in which such persons shall be ex- cluded or removed. ' The commanding ofBcer of a ship of war may expel a refugee, with- out awaiting proceedings in extradition. Ortolan, Regies Int. et Dipl. de la Mer, vol. 1, p. 299. Every nation has an undoubted HgM to surrender fugitives from other States. No man has a right to say, I will force myself into your territory, and y > > > In the treaty between the United States and Mexico, December 11, 1861, {13 Id., 1300, Art. III.,) burglary is defined, for purposes of the treaty, to be " the breaking and entering into the house of another, with intent to commit felony." And in the convention between the United States and Italy, March 33, 1868, (15 Id,. (Tr.,) 130, Art. II.,) it is defined as such breaking and entering by night. And the corresponding crimes included under the French law in the words BoZ qualijig. Convention between the United States and The King of France, Feb. 34, 1845, 8 U. S. Stat. atL., 617. ' Counterfeiting. The treaties differ very much as to what offenses of this nature are subjects of extradition ; those which have been recognized as such may be stated as follows: Treaty between the United States and Venezuela, Aug. 37, 1860, Art. XXVIII., 13 U. S. Stat, at L., 1158. Hayti, Nov. 3, 1864, " XXXIX., 13 Id., 738. 7 98 OUTLINES OF AN Convention between the United States and '^'Ee"'^ubik'"^° [ ^^^- ^' ^^^'^' '*■'■*• ^^^^^■' 15 V- 3- Sf^t Oit L., {Tr.,) 183. Making and uttering false money. Treaty between the United States and The Two Sicilies, Oct. 1, 1855, Art. XXII., 11 U. 8. Stat, at L., 653. Fabrication or circulation of counierfeit money, whether coin or paper Treaty between the United States and Austria, July 3, 1856, Art. I., 11 U. 8. 8tat. ai L., 693. Bavaria, Sept. 13, 1853, " I., 10 Id., (Tr.,) 175. Convention between the United States and Prussia, • June, 30, 1853, Art. I., 10 IT. 8. Stat, at L., {Tr.,) 100. (Extended to the) ) North -German [Feb. 33, 1868, " III.. 15 Id., {Tr.,) 116. Confederation, ) Baden, Jan. 30, 1857, " I., 11 Id., 714 ^an^dNofway,'iM--21'1860, " H., 13^,1136. " Fabrication, introduction, emission de fausse-monnaie contrefagon ou alteration de papier-monnaie ou emission de papier-monnaie contrefait ou altere ; contrefagon des poingons servant a marquer les matieres d'or et d'argent, contrefagon des Sceaux de I'Etat et des timbres nationaux, alors meme que la fabrication ou contrefagon aurait en lieu dehors de I'Etat, qui reclame I'extradition." Convention between France and The Grand Duchy of Saxe Weimar, Aug. 7, 1858, 7 De Glercq, 444. Austria, , Nov. 13, 1855, 6 Id., 579, " Counterfeiting bank notes, public securities or money." Treaty between Great Britain and Prussia, Mar. 5, 1864, Accounts and Papers, 1864, vol. LXVI., (35.) " Counterfeiting public bonds, bank notes and obligations, and, in general, any title and instrument of credit whatsoever ; the counterfeiting seals, dies, stamps and marks of State and public administration, and the uttering thereof." Convention between the United States and Italy, March 38, 1868, Art. II., 15 W. 8. Statat L., {Tr.,) 130. Crime against nature. ^ Shnbezdement. The treaties diHer very much as to what ofienses of this nature are subjects of extradition ; they are variously stated as follows : " Embezzlement by clerks and servants." Treaty between Great Britain and Piussia, Mar. 5, 1864, Accounts and Papers, 1864, vol. LXVI., (35.) INTERlSrATIOKAL CODE. 99 " Embezzlement of public moneys." Convention between the United States and Prussia, June 16, 1853, Art. I., 10 {T. S. Stat. atZ., (Tr.,) 98. (Extended to the) ) North German ^Feb. 22, 1868, " III., 15 M.,(Tr.,) 116. Confederation, ) Baden, Jan. 30, 1857, " I., 11 id., 714. Treaty between the United States and Austria, July 3, 1856, Art. I., 11 U. 8. Stat, at L., 692. Bavaria, Sept. 13, 1853, " I., 10 Id., {Tr.,) 175. Mexico, Deo. 11, 1861, " III., 12 Id., 1300. " Embezzlement by public officers, wTien the same is punishable with infa- mous punishment." Convention between the United States and The King of the French, Nov. 9, 1843, Art. II., 8 U. S. Stat, at i., 583. " Embezzlement by public officers incliiding a/ppropriation of public funds." Convention between the United States and "" tSrway^"'^" } ^ar. 31. 1860, Art. II.. 12 U. 8. Stat. at!.. 1126. Treaty between the United States and The Two Sicilies. Oct. 1. 1855. Art. XXII., 11 U. 8. Stat, at L., 653. ' ' Embezzlement by public officers or by persons hired or salaried, to the detriment of their employers." Treaty between the United States and Venezuela, Aug. 27, 1860, Art. XXVIII., 12 W. 8. Stat, at L., 1159. Hayti. Nov. 8, 1864, " XXXIX., 13 Id., 738. And the same was added to the treaty between the United States and France by an additional article. 11 U. 8. Stat, at L., 741. Convention between the United States and The Swiss Con- federation, I Nov. 35. 1 850, Art. XIV. ,nu: 8. Stat, at L. , 594. '^^epuWi^^''^'^ [ ^^^- 8-1867, " XXXVIII.,15 2(«.. (rr.,) 183. "Embezzlement of public moneys, committed within the jurisdiction of either party, by public officers, or depositaries ; embezzlement by any person hired or salaried, to the detriment of their employers." Convention between the United States and Italy, Mar. 33, 1868, Art II., 15 U. 8. Stat, at L., {Tr.,) 130. " Soustractions et concussions commises par des depositaires (ou las- siers) revetus d'un caractere public, des valeurs qu'ils avient entre les mains a raison de leur functions ; soustractions commises par des cassiers (ou depositaires) d'etablissements publics, ou des maisons de commerce, mais seulement dans le cas ou ces soustractions sont accompagnees des circonstances qui leur dounent le caractere de crime.'' 100 OUTLINES OF AN Convention between France and The Grand Duoliy of Saxe Weimar, Aug. 7, 1858, 7 Be Glereq, 444. Austria, Nov. 13, 1855, 6 M., 579. In an extradition treaty, the terms " public officers " or " public depos- itaries " do not comprehend officers of a railroad company, bul only sig- nify officers or depositaries of the government, in some of its branches or degree?. 8 Opinions of U. 8. Attorneys-General,, p. 106. False pretenses or false tokens. Treaty between Great Britain and Prussia, Mar. 5, 1864, Accounts and Poupers, 1864, vol. LXVI., (35.) Denmark, Apr. 15, 1863, " " 1863, vol. LXHI., (35.) Treaty between the United States and Great Britain, Aug. 9, 1843, Art. X., 8 U. 3. Stat, at L., 576. Austria, July 3, 1856, " I., 11 Id., 693. Bavaria, Sept. 13, 1853, " I., 10 Id., (Tr.,) 175. Venezuela, Aug. 37, 1860, " XXVIII., 12 Id., 1159. Hayti, Nov. 3,1864, "XXXIX., 13J3., 738. Hawaiian Islands, Deo. 30, 1849, " XIV., 9 7d, (2V.,) 183. Convention between the United States and '^ Fre^ch^ °^ *^^ [ ^°''- ^' ^^*^' ^^- "•' ^ ^- '^- '^^''*- *** ^- ^82- Prussia, June 16, 1853, " I., 10 Id., (Tr.,) 100. (Extended to the) ) North German |- Feb. 33, 1868, " III., 15 Id., (2V.,) 116. Confederation, ) Baden, Jan. 30, 1857, " I., 11 Id., 714. '^''f:dfr:tl.''°"-iN°-25.1850, " XIV., 11 id, 594. "^^e ^bUo"^*'™ [ ^^^- ^' ^^^'^- " ^^'^^"•' 15 ^^^ (2>-.) 183. In the treaty between the United States and Mexico, Dec. 11, 1861, (13 V. S. Stat, at L., 1300, Art. III.,) there is added, "including the forging or marking, or knowingly passing or putting in circulation, counterfeit coin, or bank notes, or other paper current as money, with intent to de- fraud any person or persons." And the same provision was added to the treaty with France, Feb. 10, 1858, by an additional article. 11 Id., 741. In the treaty between the United States and The Two Sicilies, Oct. 1, 1855, (11 U. S. Stat, at L., 653, Art. XXII.,) there is added, "including forging of evidence of public debt, bank bills, and bills of exchange." In the convention between the United States and Italy, March 23, 1868, (15 TJ. 8. Stat, at L., {Tr.) 130, Art. II.,) forging is defined, for the pur- poses of the treaty, as " the utterance of forged papers, the counterfeit- ing of public, sovereign or government acts." " The uttera/nce or the emission of forged papers," is also specified by the following : INTEENATIONAL CODE. 101 Treaty between the United States and Great Britain, Aug. 9, 1843, Art. X., 8 U. 8. Stat, at L., 576. Bavaria, Sept. 12, 1853, " I., 10 Id., (Tr.,\ 175. Hayti, Nov. 3, 1864, " XXXIX., 13 Id., 738. Hawaiian Islands, Dec. 30, 1849, " XIV., 9 /(?., (2V.,) 182. Convention between the United States and Prussia, June 16, 1853, Art. I., 10 V. 8. 8tat. at L., {Tr.,) tOO. (Extended to the) ) North German \ Feb. 33, 1868, " III., 15 Id., {Tr.,) 116. Confederation, ) '^'federltion ^°"' \ '^°^- ^^' ^^°°' " '^^- ^^ ^^'' ^^^- " Faux en ecriture publique ou authentique et de commerce, y compris la contrefason des effets publics de quelque nature qu'ils soient et de billets de Barque usage de ces faux litres. Sont exceptes las faux non accompagnes des oirconstances qui leur dounent le caractSre de crime." Convention between France and The Grand Duchy of Saxe Weimar, Aug. 7, 1858, 7 De Olercq, 444. Austria, ' Nov. 13, 1855, 6 Id., 579. It is forgery in France, within the provisions of the extradition treaty, for a royal notary to insert, in an authentic deed, false statements as mat- ter of fact. Matter of Metzger, 5 JVew York Legal Observer, 83. Proof of the forging of checks on the Communal Chest of Breslaw, in Prussia, is sufficient cause for the issue of a warrant for j udicial inquiry, with a view to the extradition of the criminal under the treaty between the United States and Prussia. 6 Opimons of U. 8. Attorneys-Oeneral, p. 761. By the law of the State of New York, " every person who, with intent to defraud, shall make any false entry, &c., in any book of accounts kept by any moneyed corporation in this State, &c., shall, upon conviction, be adjudged guilty of forgery in the third degree." Meld, that a person of- fending against this statute was not guilty of forgery, within the meaning of the extradition treaty between the United States and Great Britain, nor of the act passed to give it effect, and could not therefore be surren- dered on requisition. Be Windsor, The Jurist, vol. XI., 807. " Kidna/pping. "Defining the game to be, the taking and carrying awayof free persons by force or deception." . Treaty between the United States and Mexico, Dec. 11, 1861, Art. III., 12 U. 8. Stat, at L., 1200. See, also, False Imprisonment, below. '- Larceny. Treaty between Great Britain and Prussia, Mar. 5, 1864, Accounts and Papers, 1864, vol. LXVI., (35.) Larceny is not among the cases provided for by any convention between the United States and Great Britain, for the extradition of criminals. Neither, is constructive larceny or embezzlement by private persons. 6 Opinions of U. 8. Attorneys-General, pp. 85, 431. 102 OUTLINES or AN Larceny of cattle, or other goods and chattels of the value of twenty- five dollars or more, when the same is committed within the frontier States or Territories of either nation. Treaty between the United States and Mexico, Dec. 11, 1861, Art. III., 12 U. S. Stat, at L., 1300. Chand larceny. " Vol, loraqu'il a gte accompagne des circonstances qui lui donne le caractere de crime." Convention between France and The Grand Duchy of Saxe Weimar, Aug. 7, 1858, 7 De Olercq, 4AA. Austria, Nov. 13, 1855, 6 Id., 579. Maiming. See Mutilation, below. Manslaughter. " Murder. Treaty between the United States and Great Britain, Aug. 9, 1843, Art. X., 8 U. 8. Stat, at L., 576. Hawaiian Islands, Dec. 30, 1849, " XIV., 9 Id., (Tr.,) 182. Austria, July 3, 1856, " I., 11 Id., -693. Bavaria, Sept. 13, 1853, " I., 10 Id., (Tr.,) 175. Convention between the United States and Prussia, June 16, 1853, Art. I., 10 U. S. Stat, at L., (Tr.,) 100. (Extended to the) ) North German [ Feb. 33, 1868, " III., 15 Id., {Tr.,) 116. Confederation, ) Baden, Jan. 80, lS57, " L, 11 Id., 714. Under the British treaty it is held, that a person charged with murder on the high seas, on board a British vessel, must be given up when de- manded by Great Britain. Query? Whether evidence of justification of the killing can be received in the proceedings. He Bennett, 11 Law Times Sep., 488. For murder on the high seas, on board a British vessel, is not committed within the jurisdiction of the United States, although the vessel comes into a port of the United States, but is committed within the exclusive j urisdictiou of Great Britain . " Murder, comprehending the crimes designated (py the French Gode" hy the terms ' d'assassinat, de pa/rrioide, d'infantieide, et d'em- Convention between the United States and '^^Frfnch, °^ '^^ j- N°^- 9, 1843, Art. II., 8 U. 8. Stat, at L., 582. Italy. Mar. 23, 1868, " 11., 15 Id., (Tr.,) 130. '"i:d!rition^°"- \ Nov. 25, 1850. " XIV., 11 Id., 594. ^IT^Norw:;; [ *^- 31. I860, " IL, 13 Id., 1136. '^Kep^.bUc!'"^'' [Feb. 8,1867, " XXVm.,15 Jc?.,(2V.,) 188. INTERNATIONAL CODE. 103 Treaty between the United States and The Two Sicilies, Oct. 1, 1855, Art. XXII., 11 U. 8. Stat, at L., 652. Mexico, Dee. 11, 1861, " III., 12 Id., 1200. Venezuela, Aug. 27, 1860, " XXVIII., 12 Id., 1159. Hayti, Nov. 3, 1864, " XXXIX., 13 Id., 728. Treaty between Great Britain arid Prussia, Mar. 5, 1864, Accounts and Papers, 1864, Vol. LXVI., (35.) Denmark, Apr. 15, 1862, " " 1862, Vol. LXIII., (35.) To the same effect, see convention between Prance and The Grand Duchy of Saxe Weimar, Aug. 7, 1£58, 7 Be Clercq, 444. Austria Nov. 13, 1855, 6 Id., 579. " Attempt to commit murder," is included in many of the preceding treaties. " Assault, vAth intent to commit murder" is specified in others. See also. Assault, in this note, below. 1* Perjury. Faux temoignage, lorsqu'il est accompagn^ de circon- stances qui lui donnent le caractere de crime ; subornation de temoins. Convention between France and The Grand Duchy of Saxe Weimar, Aug. 7, 1858, 7 De Clercq, 444. Austria, Nov. 13, 1855, 6 Id., 579. " Piracy. Treaty between the United States and Great Britain Aug. 9, 1842, Art. X., 8 TT. 8. Stat, at L., 576. Austria, July 3, 1856, " I., 11 Id., 692. Bavaria, Sept. 12, 1853, " I., 10 id., (2V.,) 175. The Two Sicilies, Oct. 1, 1855, " XXII., 11 /d.,652. Mexico, Dec. 11, 1861, " III., 13 i(?. , 1300. Venezuela, Aug. 27, 1860, " XXVIII., 13 Id., 1159. Hayti, Nov.. 3, 1864, " XXXIX., 13 Id., 738. Hawaiian Islands, Dec. 20, 1849, " XIV., 9 Jd, (2V.,) 183. Convention between the United States and Pmssia, June 16, 1853, Art. I., 10 XJ. 8.8tat. at L.,(Tr.i 100, Extended to the) ) North German ^ Feb. 33, 1868, Confederation, ) Italy, Mar. 33, 1868, Baden. Jan. 30, 1857, The Swiss Con- ) ^^^_ gg ^ggQ federation, ) The King of Swe- ) j^^^ g^ i860, den & Norway, J III., 15 Id, 116. II., 15 id, (3V.,) 180. I.,ll/d, 714. XIV., 11 id, 594. II., 12 id, 1136. It was held by Crompton, Blackbttrn and Sleb, JJ., (dissentient COCKBDRN, C. J.,) that piracy, in the treaty between the United States and Great Britain, August 9, 1843, (8 U. 8. Stat, at L., 576, Art. X.,)must not be understood in the sense of piracy, by the law of nations, but of acts made piracy by the municipal law of the United States. Me Tivnan, 5 Best & Smith Q. B.,6i5. 104 OUXIilNES OF AN Lewis, in Us pampUet on Foreign Jurisdiction and the Extradition of Criminals, (p. 89,) states his opinion as to the meaning of "piracy," in conformity with the decisions of the majority of the court in Tivnan's Case. Eeporter's Note, in Be Tivnan, 5 Best & Smith Q. B., 696. In the time of peace, any act of depredation upon a ship is prima facie an act of piracy : but in time of war between two countries, the presump- tion is, ihat jiepredation by one of them on the ship of the other is an act of legitimate warfare. It is immaterial whether the act was done by soldiers or volunteers, and whether it was commanded by the belligerent State, or when done, ratified by it. Be Tivnan, 5 Best & Smith Q. B., 645. " Bape. Treaty between the United States and Mexico, Dec. 11, 1861, Art. III., 13 U. S. Stat, at L., 130a. Venezuela, Aug, 37, 1860, " XXVIII., 13 Id., 1159. Hayti, Nov. 3, 1864, " XXXIX., 13 Id., 738. Convention between the United States and '^F^renchf °^ *^^ [ Nov. 9, 1843, Art. II., 8 CT. S. Stat, at L.,m, Italy, Mar. 33, 1868, " II.,15 Jd, (2V.,) 130. '''f:d!rr;L,^°" } ^^ ^s, isso, - xiv., n m.. 594. ''tf&lZ\ M- 31, 1860, .. II., 13 Id., 1136. The Two Sicilies, Oct. 1,1855, " XXII., 11 id, 653. %ubHcf"M^«^- ''''''' "XXVni-15i-c^..(2V.,)183. ' ' Viol ; attentat S, la pudeur consommg ou tent§ avec violence ; attentat fi la pudeur consommS ou tentg mSme sans violence ; sur une personue au sujet de laquelle, et en consideration de son Sge, un pareil attentat constituerait uu crime." Convention between France and The Wrand Duchy of Saxe Weimar, Aug. 7, 1858, 7 Be Olereq, 444. Austria, Nov. IS, 1855, 6 Id., 579. " Bobbery. Treaty between the United States and Great Britain, Aug. 9, 1843, Art. X., SU. 8. Stat, at L., 576. Austria, July 3,1856," L, 11 Id., 692. Bavaria, Sept. 13, 1853, " I., 10 Id., (Tr.,) 175. Hayti, Nov. 3, 1864, " XXXIX., 13 Id., 738. Hawaiian Islands, Dec. SO, 1849, " XIV., 9 Jd, (TV.,) 183. Convention between the United States and The King of Swe- ) „ „, ,„„„ . den & Norway, [ ^^"^^ ^L I860, Art. II., 13 U. S Stat, at L., 1136. King of France, Feb. 34, 1845, " 8 Id., 617. Prussia, June 16, 1853, " I., 10 Id.', {Tr.,) 100. IITTEKNATIONAL CODE. 105 (Extended to tlie) ) North German V Feb. 32, 1868, Art. Ill, 15 Id., (2V.,) 116. Confederation, ) Baden, Jan. 30, 1857, " I., 11 Id., 714. Other treaties define or restrict the term as follows : " Bobbery, with molenee to the person robbed." Treaty between Great Britain and Prussia, Mar. 5, 1864, Accounts & Papers, 1864, vol. LXVl., (35.) " Robbery, defining the same to be, the felonious and forcible taking from the person of another goods or money to any value, by violence or putting him in fear." Convention between the United States and Italy, Mar. 33, 1868, Art. 11., 15 U. S. Stat, at L., {Tr.,) ISO. Treaty between the United States and Mexico, Dec-ll, 1861, Art. III., 13 U. S. Stat, at L., 1300. "Robbery, with molenee, intimidation, or forcible entry of an inJuMted Treaty between the United States and The Two Sicilies, Oct. 1, 1855, Art. XXII., 11 [T. 8. Stat, at L., 653. Convention between the United States and '^^ederation^"''" [ ^°^- ^^' ^^^°' ^^- '^^^•' ^^ ^- ^- '®***- '^* ^- ^^'^■ '^^ep^Wil°'°^° [ ^^^- ^' ^^^"^^ " XXVIIL, 15 Id., {Tr.,) 183. The treaty between the United States and Venezuela, Aug. 37, 1860, (13 JJ. S. Stat, at L., 1159, Art. XXVIII.,) contains the same provision, ex- cept that it refers to private houses, and is not restricted to inhabited houses. The treaty between the United States and the King of the French adds: " And the corresponding crimes included under the French law, in the words ' vol quaZifiS.' " Slame Trading. '^ Law of Nations. Offenses against any provision of this Code, the violation of which is declared to be a public ofEense, committed either within the jurisdiction of the nation making the demand, or against its rights, or the rights of its members. But see note 6, to Article 310, above. The following list exhibits certain offenses which have also been made the subjects of extradition by several recent French and British treaties, and by American treaties ; and there are added certain crimes which, though perhaps not included in any treaty, still are worthy of considera- tion in framing a complete and efficient system. Abdttction. See Kidnapping, note 11, above ; and False Imprisonment, below. Accessories. These provisions should perhaps be extended to the case of persons guilty in one country of being accessory before the fact to an 106 OUTLfNES OF AN offense committed in another country, so as to enable the former nation to demand their extradition from the authorities of a third nation to which they may have fled. In the case of AUsop, a British subject, having been charged in Great Britain with being an accessory before ihe fact to the murder of a French- man in Paris, and having escaped to the United States, the law oflBcers of the Crown were of- the opinion that the existing treaties did not sanction a demand upon the United States for his surrender to Great Britain, be- cause he was not charged with the crime of murder committed within the jurisdiction of the British Crown. Op'n. of Sir J. D. Harding, Sir Fitzroy Kelly and Sir Hugh Cairns, forsyth's Oases and Opinions in Constitu- tional Law, p. 368. Assault. " Coups et blessures volontaires ayaut occasione soit la mort, soit une maladie ou incapacite de travail, pendant plus de vignt jours." Convention between France and The Grand Duchy of Saxe Weimar, Aug. 7, 1858, 7 De Olercg, 444. Austria, Nov. 13, 1855, 6 Id., 579. Assault, with intent to Tcill. See Murder, note 13, above. Convention between France and The Grand Duchy of Saxe Weimar, Aug. 7, 1858, 7 De Glercq, 444. Austria, Nov. 13, 1855, 6 Id:, 579. Boundaries. Injuries to national boundaries. Conspiracy to commit a felony. " Association de Malfacteurs." Convention between France and The Grand Duchy of Saxe Weimar, Aug. 7, 1858, 7 De Clereq, 444. Austria, Nov. 13, 1855, 7 Id., 579. Duelling. It has been objected that this should not be a ground of a demand for extradition upon a nation whose laws do not make it an of- fense. Transactions of National Association for the Promotion of Social Science, 1866, p. 144. Mxtortion. " Extorsion des titres et des signatures." Convention between France and The Grand Duchy of Saxe Weimar, Aug. 7, 1858, 7 De Clereq, 444. Austria, Nov. 13, 1855, 6 Id., 579. False imprisonment. " Sequestration ou arrestation, ou detention illegale des personnes.'' Convention between France and The Grand Duchy of Saxe Weimar, Aug. 7, 1858, 7 De Clereq, 444. Austria, Nov. 13, 1855, 6 Id., 579. Vorfeitwre of recognisances in, criminal eases. Frauds by persons holding positions of trust. Extradition cannot be demanded of France by the United States, in the case of a fraudulent breach of trust by private persons, notwithstanding that such ofEense is made grand larceny by the statutes of the State where committed. The terms of the treaty, bearing on the subject, apply only to embez- INTEBSTATIONAL CODE. 107 zlement by public depositaries. 7 Opinions of U. S. Attorneys-General, p. 643. Fraudulent bankruptcies. Treaty between Great Britain and Prussia, Mar. 5, 1864, Accounts and Papers, 1864, vol. LXVI., (35.) Denmark, Apr. 15, 1863, " " 1862, vol. LXIII., (35.) Convention between France and The Grand Duchy of Saxe Weimar, Aug. 7, 1858, 7 Be Glercq, 444. Austria, Nov. 13, 1855, 6 Id., 579. fraudulent insolvencies. Felonious homicide. See Mwrder, note 13, above. Malicious injuries to emigrants, international works, &c. " Mutilation." Treaty between the United States and Mexico, Dec. 11, 1861, Art. III., 12 U. 8. Stat, at L., 1200. " Castration." Convention between France and The Grand Duchy of Saxe Weimar, Aug. 7, 1858, 7 Be Clercq, 444. Austria, Nov. 18, 1855, 6 Id., 579. Mutiny. " Mutiny on board a ship, whenever a crew, or a part thereof, by fraud or violence against the commander, have taken possession of the vessel." Convention between the United States and Italy, Mar. 23, 1868, Art. II., 15 U. 8. Stat, at L., {Tr.,) 130. ^^def&?.°ir'w:y,f^-31.1860, " II., 12 i^., 1126. • Seduction. Threatening. " Menaces d'attentat centre les personnes ou 1^ pro- prietes." Convention between France and The Grand Duchy of Saxe Weimar, Aug. 7, 1858, 7 Be Glercq, 444. Austria, Nov. 13, 1855, 6 Id., 579. Exceptions. The following treaties seem to make a general restriction of the enumerated crimes to cases where the crimes mentioned are sab- ject to infamous punishment. Convention between the United States and Italy, ' Mar. 23, 1868, Art. II., 15 U. 8. Stat, at L., {Tr.,) 130 The Swiss ) Confed- [• Nov. 25, 1850, " XIV., 11 Id., 594. eration, ) The Domin- ) ican Re-!- Feb. 8, 1857, "XXVIII., 15 /.,) 101. (Extended to the) ) North German [Feb. 22, 1868, " III., 15 id, (2V.,) 116. Confederation, ). Baden, Jan. 30, 1857, " II., 11 Id., 715. Treaty between -the United States and Austria, July 3, 1856, Art. 11., 11 U. 8. 8tat. at L., 693. Bavaria, Sept. 12, 1853, " III., 10 Id., (Tr.,) 176. Mexico, Dec. 11,1861, " VI., 12 Jd, 1203. Hayti, Nov. 3, 1864, ". XLI., 13 Id., 728. It is understood that the British extradition treaties all provide, that neither party shall surrender its own subjects. Oases and Opinions in Constitutional Law, by Forsyth, p. 371, note. France is understood to hold the same rule. Letter of Mr. Lawrence, Transactions of National Association for Promotion of Social Science, 1866, p. 156. And see the convention between France and The Grand Duchy of Saxe Weimar, Aug. 7, 1858, 7 De Olercq, 444. Austria, Nov. 13, 1855, 6 Id., 579. BhintscM, {Droit Int&rn. OodifA, § 399,) states the exception of citizens as one now recognized even by the States which admit the obligation of extradition, but it has, as he says, grave inconvenience for the adminis- tration for criminal justice, and had better be abandoned. Dana, (in his edition of Wheaton, § 120, note 77,) says, that the obliga- tion or willingness of a State to surrender its own citizens, who are charged with crimes committed abroad, and have sought refuge in their own ■country, is affected by the consideration whether such State punishes its citizens for crimes so committed. 110 OUTLINES OF AU" Order of arrest. 216. The executive authority of a nation upon whiph a requisition is made, accompanied by due proof of a foreign conviction or warrant of arrest, or other pre- sumptive evidence that the case is one within the provisions of this Section, must direct the arrest of the accused for examination by the proper judicial authority. A rmmdat d'arret, issued upon suitable evidence, by the proper judicial authority of France, and setting forth the crime imputed to the accused, is sufficient to justify the preliminary action of the President for the arrest of the alleged fugitive, leaving the ulterior question of his actual extradition to depend on the fall evidence of criminality then, as it should appear from the dispatch of the Minister of Foreign Affairs, on its way from France. Lawrence's Wheaton, p. 342, note. The President, in granting his order, at the request of a foreign govern- ment, for the purpose of commencing proceedings in extradition,does not need such evidence of the criminality of the party accused as would justify an order of extradition, but only prima facie evidence. 6 Opin- ions of U. 8. Attorneys-Qenerai, p. 217. The application for surrender, under the treaty of extradition of 1842, between the United States and Great Britain, may be made by the British Minister, and need not be founded on a previous indictment found against the prisoner, by the British tribunals, or on any warrant issuing there- from. Matter of British Prisoners, 1 Woodbury & Minot's IT. 8. Circuit Court Bep., 66. A mere notification, by the local officer of a foreign government, of the escape of an alleged criminal, is not sufficient prima facie evidence of a case to justify the preliminary action of the President. 7 Opinions of the U. 8. Attorneys-General, p. 6. The United States will not make demand for extradition of a person alleged to be a fugitive from the justice of one of the United States, and to have taken refuge in a foreign country, except on the exhibition of a judicial " warrant,'' duly issued, on sufficient proof, by the local authority of the State in which the crime is alleged to have been committed. 6 Opinions of XT. 8. Attorneys-General, p. 485. Clarke, in his Treatise on Extradition, (pp. 96, 98,) states the practice, under the treaties between Great Britain and France, as follows : " Demauds by Great Britain upon France are always made by the Am- bassador in Paris, in the name of the English government, directly upon the French government, and are supported by a warrant of arrest, issued by a magistrate in England, and copies of the depositions upon which it was founded. These last, however, are not necessary, the French authorities being contented to deliver up the fugitive upon the production of the warrant of arrest only." INTEEKATIORAL CODE. HI ' ' The papers are always taken to France by a police officer able to speak to the identity of the accused. Upon this, the demand is considered by the French government ; and if it is granted, the fugitive is arrested and given up, without any investigation by a French court. The matter is purely one of State, with which no legal tribunal is competent to deal." " A demand in extradition upon England must be made upon one of the principal Secretaries of State, the Chief Secretary of the Lord-Lieu- tenant of Ireland, or the Governor of any foreign colony or possession of her Majesty, by the ambassador, or other diplomatic agent of the foreign government." The demand need not be accompanied by any copies of depositions, or even a warrant of arrest issued in the foreign country ; but it is usual for the Secretary of State to require some prima facie evidence of guilt to be laid before him. If, on consideration, he thinks the surrender should be granted, he issues his warrant, signifying that this requisition has been made, and requiring all magistrates to govern themselves accordingly, and to aid in apprehending- the fugitive, and committing him to prison, to be delivered up pursuant to the treaty. The warrant is then taken be- fore a magistrate, who, on the production of the foreign warrant of arrest, and also of some evidence that the accused has committed an oflfense within the treaty, issues his warrant of arrest. The American practice is thus stated : The mode to be pursued in proceedings for the extradition of criminals, is to prefer a complaint to a judge or other magistrate, setting out the offense cliarged to have been committed, on oath ; whereupon, the j udge or magistrate is authorized to issue a warrant for the apprehension of the person accused, and upon his being brought before him, to hear and de- termine the evidence of his criminality ; and if, on such hearing, the evidence be deemed sufficient to sustain the charge, to certify the same to the proper executive authority, that a warrant may issue for the sur- render of the fugitive. 4 Opinions of U. 8. Attorneys-Oeneral, p. 301. To similar effect, see 9 Id., p. 379. But, if requested, the President will issue the previous authorization, thought to be necessary by a portion of the court, in Be Kaine, 14 How- ard's V. 8. Sup. Gt. Sep., 108. 6 Opinions of U. 8. Attorneys-General, p. 91. In this respect, however, the extradition treaties of the United States seem to be of two classes. The treaty between the United States and Austria, July 3, 1856, (11 U. 8. 8tat. at L., 693, Art. I.,} in its terms ap- pears to contemplate an arrest h/ judicial amthority, in the first instance, upon a complaint made under oath, and that the judicial decision, if against the accused, shall be certified to the executive authorities, in order that a warrant for surrender may issue. And of the same character are the provisions in the treaty between the United States and Great Britain, Aug. 9, 1843, Art. X., 8 U. 8. Stat, at L., 576. Bavaria, Sept. 13, 1858, " L, 10 /d.. (2V.,) 175. 112 OUTLINES OF AN Convention between the United States and Prussia, June 16, 1852, Art. I., 10 U. 8. Stat, at L., (Tr.,) 100, (Extended to the) ) North German \ Feb. 22, 1888, " III., 15 Id., (Tr.,) 116. Confederation, ) Baden, Jan. 30, 1857, " I., 11 Id., 714. On the other hand, the later treaties — for example, the convention between the United States and Italy, March 33, 1868, (15 U. 'S. Stat, at L., (Tr.,) 131, Art. V.,) require a copy of the foreign warrant, or of the de- positions upon which it was granted, to be forwarded, in the first instance, to the executive authority : the executive then to issue a warrant for the arrest of the accused, and his examination before the proper j udicial authority. The provisions presented in this draft embrace both methods. In one case at least, it has been stipulated that the government of a nation might, before producing documentary evidence, demand the'imme- ' diate and provisional arrest of the accused or convict ; but compliance with the demand was left optional with the government on which the de- mand was made. When such provisional arrest was granted, the docu- mentary evidence was required to be transmitted within two months, without which the person arrested was entitled to his discharge. Convention between France and ^'of f;x:Weimar'>^^- '• ''''' ' ^^ ^^-'^' *^'.^^*- ^^^ This provision seems, however, too dangerous to be inserted in an in- ternational Code. Arrest in* anticipation of requisition. 217. Upon presumptive evidence of an offense, within the provisions of this Section, the local tribunals, which would have cognizance of it, if committed within their jurisdiction, may arrest the person accused, and detain him for a reasonable time, to afford the foreign govern- ment opportunity to make requisition for his surrender. But the evidence must be sufficient to commit for trial, if the offense were committed within the local jurisdic- tion ; and if no requisition be made within one month thereafter, the accused will be entitled to his dis- charge. This is in substance the rule laid down by Chancellor Kent, on the review of continental and English authorities, in the Case of Washburn, 4 JohnsorCs New Tffrh Chancery Rep., 106. To the same effect are Mure v. Kaye, 4 Tauntorh'sBep., 34; Matter of British Prisoners, 1 Woodbury & Minot's IT. S. Gircuit Ot. Sep., 66. These authorities, however, are opposed by others. INTERTSTATIOBTAL CODE. 113 In the United States «. Davis, 3 Sumner's U. S. Oirc. Ct. Sep., 483, it is said, upon principles of international law, and independent of statute or treaty, that courts of justice are neither hound nor authorized to remand prisoners for trial to a foreign government whose laws they are said to have violated. See, also, 1 Opinions of TT. 8. Attomeys-Oeneral, p. 510 ; 2 Id., p. 359. And in the Matter of Henrich, 5 Blatchford's U. 8. Circuit Court Rep., 414 ; Bx-parte Henrich, 10 Coos's Criminal Cases, 636, it is said, that it should seem indispensable that a demand for the surrender of the fugi- tive should he first made upon the executive authorities of the govern- ment, and a mandate of the President obtained, before the judiciary is called upon to act. That at all events, this would be the better practice, and one in keeping with the dignity to be observed between nations in such delicate and important transactions. That an executive order of surrender to a foreign government is purely a national act, is not open to controversy ; nor can it he doubted that this . executive act must be performed through the Secretary of State, by order of the President. But it does not follow that Congress is excluded from vesting authority in judicial magistrates to arrest and commit, prepara- tory to a surrender. In re Kaine, 14 Howard's IT. 8. 8up. Ct. Mep., 103. The original arrest may be made by the executive, or, if the statute so provide, it may also be made by the court or the examining magistrate. Dana's Wheaton, § 115, note 73. In the Commonwealth ■». Deacon, (10 Bergeamt & Rawle's Rep., 135,) it was held, that in the absence of an extradition treaty, no State magistrate, upon a charge by a private person, can cause a fugitive from a. foreign country to be arrested for a crime committed in that foreign country, in order to afford an opportunity to the executive of the United States to de- liver him up to the government of that country. See, in this connection, the note to Article 316. Preliminary investigation. 218. Before making tlie surrender or arrest of an al- leged fugitive from Justice, tlie nation from which it is asked may determine for itself, upon a preliminary in- vestigation, whether it is presumptively established that the person charged has committed the offense, as defined by this Code ; or, in the case of a convict, that he has wrongfully escaped punishment. It was held, in the Matter of Metzger, (5 N. T. Legal OUerver, 83 ; see, also, 1 Ba/rhov/r's New York iJep., 348, and 5 Howard's U. 8. Sup. Ct. Rep. 176,) that the test of what constituted the crime is the law of the coun- try which demands the fugitive, not that of the nation upon which the demand is made. In Dana's Wheaton, (§ 117, note 75, p. 186,) it is said, that the Extradition Acts are restricted to the cases which have the essen- tial and substantial elements of the ofiEenses specified, and according to 8 114 OUTLINES OF AH the law of both countries ; and tlie mere fact that an act which, according to the general law of either country, has not the character of a particular ofiense, is treated as such by the law of one of them, does not bring a case within the treaty. We must assume that the terms employed are used in a sense common to both parties to the treaty. Compare Be Windsor,(6 Best & Smith's Q. B. Sep., 523,) where it was held that the enumeration of crimes in the extradition treaty refers to Such acts as amount to any of those offenses, according to the law of England aud the general law of the United States, and does not comprise offenses which are only such by the local legislation of some particular State of the American Union ; and Se Tivnan, (5 Best & Smith's Q. B. Sep., 696.) where piracy was taken as understood according to the law of the United States rather than the law of nations. Rules for conducting innesUgation. 219. The proceedings for the arrest of an alleged fu- gitive from justice, and the judicial investigation of the charge, must be conducted according to the rules estab- lished for similar preliminary proceedings, before the same courts or magistrates, in the case of a person charged with the commission of a like offense within the country. Clarke, {Extradition, p. 99,) states the rules for the conduct of the investi- gation as follows, in the case of a demand in extradition upon Great Britain : " The prisoner being apprehended and brought before a magistrate, three things are necessary: 1. The identity of the prisoner must be proved; 2. Such evidence of criminality must be given as, according to the laws of the place where he has been found, would justify his apprehension and commitment for trial if the crime or offense had been there committed. Some evidence upon this point is necessary in the first instance, but the magistrate has the usual powers of remand, if it be not sufficient for com- mitment ; 3. The magistrate must be satisfied, either upon the facts of the case or by the evidence of a foreign lawyer, that the offense charged comes within the definition of the crime contained in the treaty. This evidence must be taken in the prisoner's presence, in the usual way. The evidence of criminality, however, may consist, either wholly or in part, of copies of depositions taken by a judge or competent magistrate in the country claiming the fugitive." ' ' If, on examination, the magistrate finds that the acts are not disputed, but that a, justification is established antecedent to, and independent of, the acts themselves, he must discharge the prisoner." Id., 105. In order to enable a justice of the peace to issue his warrant under the statute, 6 and 7 Vict., c. 76, § 1, for the apprehension and committal for trial of an accused person, it need not appear that there was an original warrant for his apprehension in the United States, or depositions taken against him there ; and the warrant of such justice of the peace need not INTERNATIONAL CODE. 115 allege that the eyidenoe before him was taken under oath. In re Tivnan, 5 Btat & SmitKs Q. B. Sep., 645. A French warrant for the apprehension of an accused person is neces- sary in Great Britain in order to procure his extradition under 6 and 7 Viet., c. 76 ; but it need not be signed by a judge or competent magistrate, and need only be authenticated as made in such manner as would justify the arrest of the accused person in France. A person condemned jpar co?ifMTOac« in France continues to be an ac- cused person, liable to be delivered over under the Extradition Acts. In re Coppin, 3 Law Eep., (OJmncery Appeals,) 47. In the United States it is held, that the application for an order of ar- rest must conform to the requirements of the domestic law. Matter of Farez, 7 Abbott's Practice Reports, New Series, {New Tork,) 84. Also, that the question of remanding the prisoner for further examination, and the time of remanding, and the determination of the magistrate as to whether the crime is proved, and the case is within the treaty, are matters of purely judicial determination, not subject to appeal, nor to executive inter- ference, or revision. Matter of Metzger, 5 Howard's W. 8. 8up. Ct. Rep., 176 ; 6 Opinions of 11. S. Attorneys-General, p. 91 ; 10 Id., 501. The attorneys for the government in the United States are not charged with any duties in reference to the judicial inquiry instituted, before or- dering an extradition. The minister or agent of the government making the requisition employs such counsel as he pleases, if any are necessary. 9 Opinions of the U. 8. Attorneys-General, p. 246. Documentary evidence. 220. Evidence of the commission of a crime by tlie accused may consist, either wholly or in part, of orig- inal depositions, properly authenticated, conformably to the laws of the country where they were made, so as to entitle them to be received for similar purposes by the tribunals or magistrates of such country ; or, of ex- emplified copies, certified by the foreign court or mag- istrate, or proved, by oath, to be true copies of original depositions. Such depositions or copies must be certified, as pro- vided in Part YI. of this Code, entitled Administra- tion OF Justice, or by the minister of justice or chief executive officer of the demanding nation, or by the principal diplomatic or consular ofiice of the nation upon which the demand is made, resident in such foreign country : to be legally authenticated according to the laws of the demanding nation, in the manner 116 OUTLINES OF AN which, would entitle them to be received in evidence, for similar purposes, by its tribunals or magistrates. Act of Congress of August 12, 1848, % 2,9 U. S. Stat, at L., 303 ; Act of Congress of June 23, 1860, § 1, 12 U. S. Stat at L., 84 ; 10 Opinions of U. S. Attorneys-Oeneral, p. 501 ; Matter of Metzger, 5 New Tdrh Legal Observer, 83 ; In re Coppin, 3 Law Rep., {Ghancery Appeals,) 47 ; Corres- pondence of Britisli and French Governments, Accounts and Papers, 1866, vol. LXXVI., (38.) The complaint upon whicli the warrant of arrest is asked should set forth clearly, but briefly, the substance of the offense charged, so that the court can see that some one of the crimes enumerated in the treaty is alleged to have been committed. This complaint need not be drawn with the formal precision and nicety of an indictment for final trial,but should set forth the substance and material features of the offense. In re Henrich, 6 Blatchford's U. 8. Circuit Ot. Sep., Ali; £Jx-parte B.enTich, 10 Oox's Criminal Cases, 636 ; 2 Abbott's National Digest, 509, note ; Matter of Fa- rez, 7 Abbott's Pr. Rep. W. S., 84. The affidavit which charges the crime is defective if the witness only swears to his belief. , . . Suspicion does not warrant a commitment, and all legal intendments are to avail the prisoner. The return is to be most strictly construed in favor of liberty. lb. The court can regard only the facts set forth in the aifidavit as having a legal existence. Any misrecitals and overstatements in the requisi- tion and warrant, which are not supported by the affidavit, cannot be re- ceived as evidence to deprive a person of his liberty, and transport him to a foreign State for trial. Mc-parte Smith, 8 McLean's U. S. Circuit GowH Sep., 131. The affidavit upon which a warrant of arrest is to issue for the extra- dition of a fugitive, must state distinctly that the fugitive has committed a crime, and that he committed it in the State from which the requisition comes ; for no foreign State can entertain such, a jurisdiction of crimes committed in another State as to entitle it to make requisition for the criminal on a third State. SJx-parte Smith, 3 McLean's U. 8. Circuit Court Rep., 131. Each piece of documentary evidence offered by the agents of the for- eign government in support of the charge of criminality, should be ac- companied by a certificate, of the principal diplomatic or consular officer of the United States resident in the foreign country from which the fugi- tive shall have escaped, stating clearly that it is properly and legally au- thenticated, so as to entitle it to be received in evidence in support of the same criminal charge, by the tribunals of such foreign country. In re Henrich, 5 Blatchford's U. S. Circuit Ct. Rep., 414 ; 3 Abbott's Nat. Dig., 509, note ; 10 Cox's Criminal Cases, 636. The parties seeking the extradition of the fugitive should be required by the commission to furnish an accurate translation of every document offered in evidence which is in a foreign language, accompanied by an aiB- INTEENATIONAL CODE. 117 Javit of the translator, made before tim or some other United States commissioner or judge, that the same is correct, 76. Public officers should furnish authenticated copies of documents in their cu.stody, when demanded, and should assist in bringing forward testimony, according to the duties of their several stations ; and indivi- duals should not refuse to give testimony. 1 Opinions of TJ. 8. Attorneys- General, p. 82. The commissioner before whom an alleged fugitive is brought for hear- ing should keep a record of all the oral evidence taken before him, taken in narrative form, and not by question and answer, together with the objections made to the admissibility of any portion of it, or to any part of the documentary evidence, briefly stating the grounds of such objec- tions, but should exclude from the record the arguments and disputes of counsel. In reHenrich, 5 Blatohford' s d. S. Girc. Gt. Bep., 414 ; 'i Abbott's Nat. Dig., 509, note ; 10 Gox's Griminal Gases, 636. As to the necessary authentication of depositions under the English statutes to carry into effect the extradition treaties with France, see Be Coppin, 2 Law Sep., {Ghancery App.^ 47; and the Correspondence be- tween the French and English Governments on this point, in Accounts and Papers, 1866, vol. LXXVI., (38.) See reviews of this controversy in a, paper by Mr. Westlake, jn Transactions of National Association for Promotion of Social Science, 1866, p. 144, and in a report by Mr. Picot, Bulletin de la Societe de Legis. Gomp., Mai, 1869, p. 56. Necessary proof of guilt. 221. The extradition of an alleged fugitive from jus- tice, under this Section, can be made only when the fact of his commission of the offense is so far estab- lished that the laws of the country making the extra- dition would justify apprehension and commitment for trial, if the crime had been there committed. This provision is contained in nearly all the American treaties. Mere suspicion is no ground for a requisition of a fugitive fram a foreign na- tion. The law of nations requires that evidence, clear and positive, shall be furnished. 1 Opinions of IT. 8. Attorneys-General, p. 509. The proof should be in all cases not only competent, but full and satis- factory, that the ofiense has been committed by the fugitive iu the foreign jurisdiction ; sufficiently so to warrant a conviction, in the judgment of the magistrate, of the offense with which he is charged, if sitting upon the final trial and heslring of the case. No magistrate should order a surrender short of such proof. Ex-parte'K.a.ine, 3 Blatchford's U. 8. Girc. Gt. Bep., 1. A letter from the foreign minister resident here, asking for the prelim- inary process for extradition of an alleged fugitive criminal, accompanied by a warrant of arrest of the accused, purporting to be issued on due in- quiry and evidence, by competent judicial authority iu the foreign nation 118 OUTLINES OF AN and sufficiently authenticated by the minister's certificate, would not, if presented to an examining magistrate in the United States, be alone sutB- cient to authorize him to certify the criminality of the party charged, on which to found his actual extradition ; for such evidence would not jus- tify his commitment by the local law where the examination takes place. 6 Opinions of U. S. Attomeya-Qen&ral, p. 317. To authorize the arrest and removal of a fugitive from justice to the State having jurisdiction of the crime, it must distinctly appear, from the affidavits before the magistrate upon which the requisition was based, that the supposed criminal committed the crime in the State from which the requisition proceeds. Ex-parte Smith, 3 McLean's U. 8. Giro. Ot. Rep., 131. Whether a defense may be interposed is a question which has been raised, but it seems better that the extradition should be made on the ac- cusation, properly supported, leaving the case to be tried abroad. See, however. Letter of Mr. Lawrence, in Trans, of Nat. Asso. for Prom, Social Science, 1866, p. 156. Evidence in case of conmcted criminals. 222. In case sentence or judgment of guilt has been pronounced in tlie country making the requisition, sur- render shall not be obligatory, except on presentation to the authorities of the nation on which the requisi- tion is made, of the original sentence or judgment es- tablishing the guilt of the accused, properly authenti- cated, or of an exemplified copy thereof, as prescribed in article 220. Tins article is suggested by the provisions of the convention between the United States and Italy, Mar. 83, 1868, Art. V., 15 U. S Stat, at L., (Tr.,) 131. ^t^d°Nor;Srl^--21'^860, " L,13/e CTarc?, p. 669, . . . . three months. Treaty between the United States and Russia, Dec. 6-18, 1833, 8 U. 8. Stat, at L., 448, four months. Treaty between the United States and Hawaii, Dec. 20, 1849, Art. X., 9iS.,(rr.,) 183 six months. Delay of extradition for punishment of offense. 246. If a deserter is charged with committing an offense cognizable by the local authorities, they may defer his surrender until he is acquitted, or punished therefor. Consular convention between France and Portugal, July 11, 1866, Art. XIII., 9 De Olercq, 582. Austria, Dec. 11, 1866, " XII., 9 Id., 669. Brazil, Dec. 10, 1860, " IX., 8 id. , 153. Treaty between the United States and ' Denmark, July 11, 1861, Art. 11., 13 U. S.' Stat, at L., 605. ^°Re'^amo [^®^- 8,1867," XXVI., 15 /d, (3V.,) 183. Netherlands, Jan. 23, 1855, " X., 10 Id., 1150. Prussia, May 1,1828, " XI., 8/^,382. Russia, Dec. 6-18, 1832, " IX., 8 Id., 448. ^^orway°'^f'^°^5' 4,1837," XIV., 8 J(Z., 846. And other treaties. PART II, THE RELATIONS OF A NATION TO THE PER- SONS AND PROPERTY OF THE MEMBERS OF OTHER NATIONS. Title VI. National Chakacteb. VII. DOMICIL. VIII. National Jurisdiction. IX. Duties of a Nation to Fokeignbrs. X. Duties of Foeeignebs to the Nation. TITLE VI. NATIONAL CHARACTER. National character, as tere treated, and as elsewhere mentioned in this Code, is that which is recognized during Peace. It may perhaps be re- garded as coextensive with Allegiance, and to some extent to correspond with Jurisdiction. In questions arising out of War, national character, iu the sense of belligerent or neutral, is said to be impressed on persons, ac- cording to domicil or other circumstances ; but it should seem better to use the words in this Code in their strict sense. ' The hostile or neutral char- acter, which may be acquired or lost by acts aiding the enemy, without respect to any element of national character, is the subject of provisions in the Book on Wae. For a recent discussion on tbe subject of National Character of Persons, see the Transactions of British Association for the Promotion of Social Science, 1868, pp. 158, 179 ; Bevue de Droit International, 1870, No. 1, p. 120. The new English Law of Naturalization recognizes the principle of de- feasible allegiance, iScc, as expressed in Chapter XIX. See "The Nat- uralization Act, 1870," 33 Vict., c. 14. Chapter XIX. Of Persons. XX, Of Shipping. INTERNATIONAL CODE. 129 CHAPTER XIX. NATIONAL CHARACTER OP PERSONS. Section I. General provisions. II. Allegiance. III. Expatriation. IV. Naturalization. SECTION I. GENBRAIy PROVISIONS. Abticlb 347. " National character " defined. 248. Every person has one national character. 249. Effect of marriage. > 250. Legitimate child of a member of the .nation. 251. Legitimate child of a foreigner. 352. Illegitimate children. 353. Effect of recognition. 254. Mode of recognition. 256. Ulefritimate child born abroad. 256. Parents of unknown national char- acter. 357. Presumption of membership. 258. Change of national character. 259. Political privileges unaffected by marriage. 260. Effect of marriage and removal. '■'■ National character ^^ defined. 247. The national character of a person is derived from Ms connection with a nation, being one of its inembers, as explained in this Chapter. Every person has one national character. 248. Every person has a national character.' ISTo 130 oiTTLiwES or AN person is a member of two nations at the same time ; ' but any nation may extend to a member of another nation, with his consent," the rights and duties of its own members, within its own jurisdiction,* in addition to his own national character. ' This article would change the existing rule on the subject, in that it recognizes a national character in every person whomsoever, and declares distinctly that no person can have two national characters ; but it permits each nation to extend any rights or privileges of its members to strangers, who are members of another nation, or to suspend the rights and privi- leges of its own members, as provided in this Code, or by its own consti- tution and laws. The existing rule may be stated as follows : A person who has ceased to be a member of a nation, without having acquired another national character, is nevertheless deemed to be a mem- ber of the nation to which he last belonged, except so far as his rights and duties within its territory, or in relation to such nation, are con- cerned. Such persons are said to number many thousands ip France. Heffter, (Droit International,) § 38, subd. I., note 3. By the French law they have a French status, if domiciled there, (1 BoUeu. The ■Golden Gate, 6 American Law Register, 273, 303. Charterers having, by the terms of the charter party, exclusive control, ^re deemed owners within this rule. lb. 143 OTJTLIIirES OF AN The following rules are framed upon the theory : 1. That every ship ought to be subject to some one jurisdiction, and that therefore the responsibilities of national character ought to be im- pressed upon every ship, vrithout reference to its satisfying the conditions of registry laws. 2. That every nation may accord such advantages as it chooses, and there- fore the immunities and privileges of national character ought to be ex- tended only to such ships as do satisfy the conditions of the local law. Akticle 373. Evei-y ship has one national character. 374. Origin of national character. 375. Change of national character. 376. Registry. 377. Passport required. 378. Contents of passport. 379. Effect of ship's passport. Every sMp has one national character. 273. Every ship has a national character, and no ship has that of two nations at the same time. But any nation may allow to ships of other nations within its own territory any of the privileges of its domestic ships. Origin of national character. 274. The national character of a ship is that of the nation within whose territory she was constructed, until changed as hereiaafter provided. Change of national character. 275. The national character of a ship, however ac- quired, may be changed : 1. By its ownership, or a majority in interest there- of, becoming vested in owners of a different national character ; 2. By being captured and adjudged lawful prize, as provided in Book Second of this Code, on War ; 3. By judicial forfeiture, pursuant to the laws of another nation, for a breach of the laws thereof, or of the provisions of this Code. In any such case the national character acquired is that of a majority in interest of the new owners. INTERNATIONAL CODE. 143 Registry. 276. Any nation may refuse the privileges of its own national character to any sMp wMoh has not a recorded title, according to its laws. Passport required. 277. A nation may, in its discretion, give to any of its ships a passport, such as is mentioned in the next article. Without such a passport, no private ship is entitled to receive from other nations, parties to this Code, or their members, the immunities and privileges of its national character. Suggested by the treaty between the United States and The Two Sicilies, Oct. 1, 1855, Art. IX., 11 U. 8. Stat, at L., 639. Contents of passport. 278. The passport of a ship must contain : 1. The name, vocation and residence of the owner, if but one, or of each of the several owners, if more than one, mentioning their number, and in what proportion they share in its ownership ; 2. The name, dimensions and burden of the ship, and such other particulars as may be necessary to identify it ; and, 3. A statement that the ship bears the national char- acter of the nation issuing the passport, and is entitled to the immunities and privileges thereof. The passport must be certified by the executive au- thority, competent, by the law of such nation, to give the passport. " To entitle the national character of a vessel to recognition, it must be furnished with a passport, [passe-port, conge ou registre,] and which, cer- tified by the executive authority competent by the law of such nation to give it, shall state : First. The name, the vocation and the residence of the owner, stating that there is but one, or of the several owners, indi- cating their number, and in what proportion they shars in its ownership. Second. The name, the dimensions, the burden, and all other peculiarities of the vessel which can serve to identify its nationality." 144 OUTLINES OF AN Treaty of friendship, commence and navigation between France and Honduras, Feb. 22, 1856, Art. XIII., 7 De Olercg, 10. Nicaragua, Apr. 11, 1859, " XIII., 7 Id., 586. To very similar efEect are the following : Treaty of navigation between France and Sweden & Norway, Feb. 14, 1865, Art. III., 9 Oe Olercq, 173. Treaty of commerce and navigation between France and The Free Cities of ) Lubeck, Bremen &^ Mar. 4, 1865, Art. V ., 9 De Olereq, 187. Hamburg, ) The Grand Duchy of \ Mecklenburg Schwe- ] . tte)-^L^nd dX :? J-« 9. 1865. " V., 9 M., 295. Mecklenburg Stre- litz, J Portugal, July 11, 1866, " XXI., 9 Id., 558. Treaty of commerce between France and The Pontifical States, July 19, 1867, Art. X., 9 De Olercg, 739. Treaty of friendship, commerce and navigation between France and The Hawaiian Islands, Oct. 29, 1857, Art. XIV., 7 De Olercg, 322. This treaty also provides that in case of doubt as to the nationality of a, vessel, or of the ownership, or of the master or crew, the consuls of "the country for which the vessel is destined shall have the right to de- mand authentic proof before visaing the papers of the vessel. This is to be done without charge to the ship. Effect of sMp' s passport. 279. The passport of a ship, issued in conformity to the last article, shall be everywhere taken as conclusive evidence of its national chajracter at the date of the passport, and as presumptive evidence of such char- acter at any subsequent time ; subject, however, to the local regulations for verification ; and also subject, in the administration of justice in civil and criminal cases, to the rules of evidence applicable in courts of justice. ' ' On an indictment under a law making criminal certain acts done on board a vessel owned in whole or in part by a citizen of the United States, ownership in fact must be proved. General reputation or an American registry is not even prima facie evidence of ownership. United States «. Brune, 2 Wallace Jr.'a U. S. Circuit Oourt Sep., 264. It is not necessary to produce documentary evidence in order to prove the national character of a vessel, on an indictment for piracy. The laws that prescribe what ships' papers shall be carried on board, have relation to financial, commercial or international objects, and are not decisive in a INTBENATIONAL CODE. 145 prosecution for piracy. The character of the vessel is then a matter of fact to be established by general evidence. United States v. Furlong, 5 Wfieaton's V. S. Swpreme Court Hep., 184. To show a vessel to be American, so as to give jurisdiction to punisn offenses committed on board of her, it is enough to show, in the first in- stance, that she sailed from and to an American port, and was apparently owned and controlled by citizens of the United States. It is not ne- cessary to produce her register. United States ■». Peterson, 1 Woodbury & Minot's U. 8. Circuit Ct. Sep., 305. But a ship engaged in a whaling voyage, without having surrendered her register or taken out an enrollment and license, pursuant to the act of July 18, 1793, was held not to be an American ship, within the pur- view of the act of March 3, 1835, oh. 40, punishing any of the crew of an American ship for an endeavor to make a revolt. United States v. Rogers, 8 Sumner's U. 8. Circuit Court Rep., 343. Compare a somewhat different provision as to the effect of passports of persons, in Article S33. 10 146 orrTLiiiTES of an TITLE VI I. DOMICIL. Chapter XXI. Domioil, original and secondary. XXII. Change of domicil. XXIII. Effect of change of domioil. CHAPTER XXL DOMICIL, ORIGINAL AND SECONDARY. Akticle 280. " Domicil " defined. 281. Kinds of domicil. 383. Original and secondary. 383. Derivative and voluntary. 384. Every person has one domicil. 385. Original domicil of legitimates. 386. Original domicil of illegitimates. 287. Child of unknown parentage. 288. Continuance of domicil. 389. Wife's secondary domicil. 390. Child's secondary domicil. 291. Ward's secondary domicil. 393. Domicil of insane persons, &c. '•'■Domicil'''' defined. 280, The term "domicil," as used in tM8 Code, means the seat ' of permanent residence — the home.' ' Ortolan, {ExpUeation Mistoriqiie de Inst. Justinien, 1. 1., p. 403, 6 ed.,) rejects the definition of domicil as " the place where a person has his principal establishment," for the reason that domicil is not a place at aU, in the sense of being a portion of space. He substitutes the following : " The seat, or home, {le siSge, la demeure,) which a person is deemed in law to have always for the exercise of certain rights or the application of certain laws." Boileux, I., p. 313 ; Puehta, Vorlesungen, 1., S. 99, § 45, (5th ed.;)3 Kent's Commentaries, 540 note, (8th ed.,) support the definition above given. See, also, Westlake's Private International Law, p. 31, note a, INTERNATIONAL CODE. 147 and p. 35, Rule 2. Demante, I., p. 197 ; Duranton, I., no. 351 ; Bug sur Pothier, I., p. 3 ; Valette aur Prudhon, L, p. 336, cited Mourlon, I., p. 188. The definition of Lord Westbort, Bell v. Kennedy, House of Lords, 6 Session Gases, 3 series, p. 78 ; "The relation -which the law creates be- tween an individual and a particular locality," if not open to the objection of Ortolan, as above, that it is too vague to be of use, is only a statement of domicil ; i. e., the status arising from it. Although it is' true that " domicil is in law what residence is in fact," (Ortoton.p. 403,) yet " dom- acil is the legal conception of residence ;" {Westlake, § 30 ;) and this legal conception is predetermined in particular cases, not in view of all the facts of these cases, but of some only, which are taken as controlling, be- cause it is considered that they are, in the majority of instances, most likely to lead to a conclusion in harmony with the fact. But when such special facts are taken as controlling for any other reason than this likeli- hood, a purely arbitrary extension is given to the term domicil, which ought to be rejected, and the alternative taken of placing these cases in some other category. Thus the minor's domicil, after his parents' death, follows that of the guardian. This rule is founded upon its correspond- ence with the fact in the great majority of instances. Should it be con- sidered as also established that the succession to such minor's property is not to be changed by the guardian's change of domicil, the rule itself should not be rejected, but this proposition should be inserted among the rules of law relating to succession. See Westlake, Private Int. Law, § 36. '' Politiaal Code, Reported for New York, § 6. Kinds of doTnicil. 281. Domicil is either : 1. Original; or, 2. Secondary. Original and secondary. 282. The original domicil is that of the person at the time of his birth. All others ' are secondary. ' At any other time, whether at the place of the original domicil, or elsewhere. Derivative and voltmtary. 283. A secondary domicil is derivative, when de- pendent upon the domicil of another person. Other- wise it is voluntary. Every person Tias one domicil. 284. N'o person can be without a domicil," or have at one time more than one domicil." But one may have a residence, for a particular purpose, at a place other than his domicil." 148 OUTLINES OF AN : ' Political Code, Reported for New 7o,rk, § 7 ; Boileux, I., p. 314 ; Wett- lake's Private Intern. Law, pp. 33-38 ; Stor^, % 47. '' Political Code, Reported for New York, § 7 ; Boileux, I., pp. 214, 215 ; Mourlon, I., p. 198 ; Westlake, §§ 316, 335 ; McLaren's Law of Wills and Succession, § 7, p. 4 ; Brent v. Armfield, 4 Oraneh's U. 8. Circuit Ct. Rep., 579; Crawford «. Wilson, 4 Barbour's {New York) Rep., 504. The case of a person whose birth-place Is unknown, buying two country houses in difierent countries under the same circumstances, and dying in one of them, (suggested in 4 Phill. Intern. Law, % 59,) is provided for by Articles 287 and 288. ^ Chaine v. Wilson, 1 Bosworth'a (New York) Rep., 673 ; Frost v. Brisbin, 19 Wendell's {New York) Rep., 11 ; Douglas «. Mayor of New York, 2 Duer's (New York) Rep., 110 ; 4 PhiMimore's Intern. Law, § 55. Original domicil of legitimates. 285. The original domicil of a child which is legiti- mate, or has been acknowledged by itp father before its birth, is determined by the domicil of its father at the time of its birth ; or, if its father is then dead, or has no voluntary domicil, by the domicil of its mother. See Ludlam v. Ludlam, 26 New York Rep., 356, 371; Westlake' s Private Intern. Lam, § 35; Brown ». Lynch, 2 Bradford's Surrogate {New York) Rep., 214. Original domicil of legitimates. 286. The original domicil of an illegitimate child is determined by the domicil of its mother at the time of its birth, unless previously acknowledged by its father. Child of unknown parentage. 287. The original domicil of a child whose parents are unknown, is the place of its birth, or where it is first found. Continuance of. domicil. 288. The existing domicil' continues until another is gained," or until the death of the person, whichever first occurs, except as provided in article 301.' ■ This is true not only as to the original domicil, but also in reference to the derivative domicil ; e. g., of the wife ; (Pennsylvania v. Eavenel, 31 Howard's U. 8. Sup. Ct. Rep., 103; Westlake, § 42 ;) or minor ;.Doe «. Lith- erberry, 4 McLean's Rep., 454 ; Goods of Patten, 6 JvmM, N. S., 151; Boil- eux, I., p. 131. INTERNATIONAL CODE. 149 ' A domicil cannot be lost until .another is gained. Somerville v. Soin- erville, 5 Vesey's Oh. Rep., 787 ; Graham ®. Public Adm'r, 4 Bradford's Surrogate {New York) Sep., 127. ^ The exception refers to the abandonment of a secondary domicil, with intent to acquire the original domicil. Wife^ s secondary domicil. 289, The domicil of the wife follows the domiciL of ■ her husband, except : 1. When she is living apart from him," separated by the decree of a competent tribunal," or by his consent, such separation being allowed ' by the domicil of each ; ' 2. When he has committed' an offense which, by the law of her actual residence, entitles her to a divorce,' which she claims ; ' 3. When she or some other person is the committee of his person ; ' 4. When some person other than her husband is the committee of her person.' Bremer ■». Freeman, 1 Dea/ne'a Rep., 313; Political Code Reported for New York, § 7. ' Pothier, Gontr. de Marriage, § 534 ; 4 PMllimore, Intern. Law, §§ 71 -73. ^ Vescher «. Vescher, 13 Barbour's {New York) Rep., 640; Barber v. Barber, 31 Howard's U. 3. Supreme Gt. Rep., 583 ; Williams e. Dormer, 3 Rob., 505 ; 3 Bisliop on Marriage and Divorce, (3d ed.,) § 135 ; (1st ed.,) § 738 ; Pothier, ubi supra, § 533 ; Allison a. Catley, Session Gases, 3nd ae- ries, I., 1035, 15th June, 1839 ; MoLa/ren's Law of Wills and Succession, p. 15, § 39 ; Boileux, I., pp. 333, 333, note 1 ; Westlake, Private Int. Law, § 43 ; contra, Merlin, Repertoire de Jurisprudence, Domicile, § 5, no. 1 ; Dalloz, Domicil, no. 9 ; Zachwrie, p. 380, § 140. Doubted by Lord Kingsdown, in Dolphin «. Robins, 7 House of Lords Oases, 430 ; 3 MoMqueen's Rep., 581 ; Re Daly's Settlement, 33 Jurist, 535. It has even been held that a decree of separation cannot impose any particular domicil upon her. Di- jon, 38 Ap., 1807 ; 6 Dalloz, t. 6, p. 379. 2 This is indispensable. Mourlon, I., p. 194, (4th ed.) ; Bishop, (3nd ed.,) 1, § 684 ; 3, § 129 ; 1 McLaren's Law of Wills and Succession, p. 15, § 39 ; Dolphin V. Robins, 3 Macqueen's Rep., 563-584. " Westlake, § 863. See Connelly «. Connelly, 7 Moore's Primy Oouncil Rep., 438, 471. 5 BisTwp, as above, 3, § 138, (3nd ed.;) § 730, (1st ed.;) Westlake, §§ 43, 364. Whether the exception extends as far as to allow the wife to establish a domicil in a different judicial locality from that in which her husband's 150 OUTLINES OF AN domicil was situated at the time of the offense, has been denied. Westlake, § 365 ; 3 Bishop, (2nd ed.,) § 128, (1st ed.,) § 730. Most of the State courts of the United States hold that it does. Bishop, 2, § 128 ; Jenness v. Jennes.s, 24 Indiana Sep., 358, 359 ; Reel «. Elder, 62 PennayVeania Bep., 315 ; and the Supreme Court of the United States has followed their decisions in a late case, Cheever t. Wilson, 9 , Wallouie's JJ. 8. Sup. Ot. Bep., 108. >> Bishop, 2, § 129, (2d ed.) This restriction is put on the ground that the offense cannot be inquired into collaterally. Dolphin v. Robins, 3 Macqueen'a Bep., 578, 579; 7 House of Lords Vases, 418; Bishop, ubi supra. If the restriction is admitted, it should not be extended to a case where the wife has removed, acquired a new home, commenced her proceedings for a divorce, and died before decree. ' Armstrong «. Armstrong, 7 Veazey's {Vermont) Sep., 350. 8 Boileux, I., p. 221 ; Mourlon, I., p. 195 ; BemantS, I., p. 206. CMld's secondary domicil. 290. The domicil ' of tlie father, and after his death, that of the mother while she remains unmarried, is the secondary domicil of the unemancipated " miaor child, if legitimate, or acknowledged by the father, except, 1. While another person than the parent is the guardian of the child ; ' 2. While the parent has a committee of his person; 3. While the child has a voluntary domicil ia a dif- ferent place, pursuant to the provisions of article 303. ' Mere residence — e. g., imposed by banishment — is not such a domicil. Hardy ®. De Leon, 5 Texas Bep., 237. Nor is the short forensic domicil, which is suflBcient for purposes of divorce. See Ringer v. Ringer, 15 January, 1840, Session Gases, 2ud series, vol. 2, p. 307 ; Brodie ®. Brodie, 30 L. J., {Prdb. t& Matr.,) 185. The American cases, except in Louisiana, concur in holding that the motjier loses all right to change her child's domicil on re-marnage, ami that the step-father neither acquires it, nor imposes his domicil (in tli'- child, although the child actually resides with them. Allen «. Thompson 11 Humphrey's Bep., 538; Mears ■». Sinclair, 1 West Virginia Bep., W'l. (Where the mother was also guardian.) Brown v. Lynch, 2 Bradford's (Neio Torh) Bep., 218. To the same effect, McLaren's Law of Wills and Succession, § 13 ; Potli- ier, Gout. d'Orleans, Introd., 17. The rule in Louisiana is different. Succession of Lewis, 10 Louisiana Annual Bep., 790. It seems not to have been decided whether the death of the step-father would revive the mother's right in this respect. INTEENATIONAL CODE. 151 ^■Code Napoletm, Li v. I., Tit. III., Art. 108; BoUeux, I., p. 231 ; Mowr- lon, I., p. 195 ; Political Code, Reported for New York, § 7. ' Mourlon, I., p. 195. * This exception is necessary, if the provisions of the article referred to are adopted, as, if the term " minor child " is not restricted to children under the age of pupillarity, such child might have actually changed its domicil. Ward's secondary domicil. 291. The domicil of the guardian, or if there are several jointly appointed, that of the one first named in the instrument of appointment, is the secondary domicil of his ward. The case of an infant under two guardians having different domicile, does not seem to have yet arisen, in such a form as to require a decision. See Robertson on Succession, p. 201, note ; Potingeri). Wightman, 3 Meri- vaie's Sep., 67. Domicil of insane persons, &c. 292. The domicil of a person of unsound mind, or of one duly declared incompetent, is determined by that of the committee of his person ; or if there are several jointly appointed, of the one first named in the instrument of appointment. Phillimore's Law of Domicil, p. 55 ; BoUeux, I., p. 330 ; Demomte, I., p. 206 ; Mourlon, I., p. 195. See Sharpe v. Crispin, 38 Law Journal, Pro- bate, 17 ; 1 Lwu> Rep., Prdb. & Div., 611. To the contrary, Westlake Private Intern. Law, § 53. CHAPTER XXII. CHANGE OF DOMICIL. Abticle 393. Right to change domicil. 394. Change of an adult's derivative domicil. 395. Guardian may change ward's domicil. 396. Parent's consent to change necessary. 397. Testamentary change of derivative domicil, 398. Change of domicil, how made. 399. Intention to change. 300. Presumption of no intention to change. 301. Reverting to original domicil. 803. OfScial or compulsory change of residence. 303. What law determines change of domicil. 304. Nationality not affected. 152 OUTLINES OF AIT Right to change domicil. 293. Any person of full age and capacity, acting in good faitli,' may at Ms pleasure change Ms voluntary domicil to any place where he has a right to reside. ' Watson ». Simpson, 13 Louidcma Annual Sep., 337. Change of an aduWs derivatite domidl. 294. The derivative domicil of an adult changes with a change of the voluntary domicil on wMch it depends. Guardian may change ward's domicil. 295. The domicil of an unemancipated minor having no competent parent living, may be changed by its guardian," with a change of his own domicil, ' when acting in good faith and for its benefit." ' 2 Kent's Commentaries, 337, note ; Wood v. Wood, 5 Pmge's {New York) Sep., 605 ; Holyoke v. Hagkins, 5 Pickering's {Massachusetts) Rep., aO; Succession of Lewis, 10 Louisiana Annual Hep., pp. 789, 790 ; Carl- isle V. Tattle, 30 Alabama Sep., 613 ; Townsend v. Kendall, 4 Minnesota Sep., 418. Doubted, Mx-parte Bartlett, 4 Bradford's {New York) Sep., pp. 334, 335. Denied, School Directors v. James, 3 Watts & Sergeants Sep. 568 ; Mears D. Sinclair, 1 West Virginia Rep., 185. * Kent's Oom., 237, note ; Lyon v. Andrews, 12 Louisiana Annual Rep., 685 ; Fmlix, Droit Intern. Prive, I., p. 57, note ; Mourlon, I., p. 191, II. ; Duranton, I., no. 367, p. 301. ' Potinger v. WigUtman, 3 Merivale's Rep., 67. Parent' s consent to change necessary. 296. The guardian can not -change the domicil of Ms ward while the latter has a competent parent livings except with the consent of such parent. Political Code, Reported for New Fork, § 7. Testamentary change of deri'oative domicil. 297. A person authorized so to do by the law of his domicil, may change the domicil of any person depend- ent on his, after his death, to any place where the sur- vivor has a right to reside. In White v. Howard, 53 Barbour's {New York) Rep., 394, it was held that a widower domiciled in Connecticut might change the domicil of his unemancipated minor child, upon his death, by appointing a testamen- tary guardian domiciled in New York. INTERNATIONAL CODE. 153 Change of domioil, how made. 298. A change of domicil is produced by the act of residing in another country,' with the iatention of making that country the home.' There must be a union of act and latent. ' If tloK Intent exists, a residence in pursuance of tliat intention, how- ever short, is sufiScient. Bell ■». Kennedy, L. B.,\ Scotch App., 319; Westlake's Private International Law, § 39 ; 4 PliUlimore' s Int. Law, p. 155, note ; Merlin, Bepertoire de Jurisprudence, vol. 8, p. 337, {5th ed.) It has been supposed that a domicil of succession might be acquired with- out any fixed place of residence in the new country, if the previous dom- icil has been unequivocally abandoned. Westlake, § 34 ; Somerville i). Somerville, 5 Vesey, Jr.'s Bep., 791; Bradley v. Lowrey, 1 Spear's Equity Bep.,{U. /S.,)16. ' Chaine d. Wilson, 1 Bosworth's {New York) Bep., 673; Munro v. Munro, 7 Ola/rk & Finnelly's Bep., 877; Craigie ». Lewin, 4 Ourtis' U. S. Gire. Ct. Bep., 448; De Bonneval v. Bonneval, 1 Id., 856; Williams v. Saunders, 5 OoldwelVs {Tennessee) Bep., 80. Where a person has two places of residence, that which was first estab- lished may be regarded as his domicil, unless an intention appear to re- main at the other as the principal and permanent residence. Gilman v. Gilman, 53 Maine Bep., 165; Guthrie's Samgny, § 359. Intention to change. 299. The intention to change the domicil may be manifested by making and signing a declaration there- of, both in the country of the present and of the ta- tended domicU, before a notary public, or some other officer authorized to administer oaths ; a copy of the declaration, certified by the officer, being published in the official journal of the country where made, within one month thereafter. McLa/ren's Law of Wills and Succession, I., § 9, note, advocates the adop- tion of provisions as to municipal domicil similar to those of the Gode Napo- leon, Liv. I., Tit. III., §§ 104, 105. The provisions as to international d.jui- icil, in 24 and 25 Viet., c. 131, requiring a year's foreign residence, and the filing of a declaration in some public office of the country of the new dom- icil, are said not to be eflTectual. {Hayes & Ja/rman's Precedents of Wills, (7th ed.,) p. 541; ^Williams' ExecuUrra, (6th ed.,) p. 1409, note.) It is settled iu the United States, that a formal declaration in a private instrument as Xq- the place of domicil, is of great though not conclusive weight. [Ennis ■». Smith, 14 Howourd's TJ. 8. Bvp. Gt. Bep., 433; Roberts' Will, 8 Paige'.^ {New Tork) Bep., 519; Burnham v. Rangeley, 1 Woodbury & Minot's V. 8. Cire. Gt. Bep., 9; Lyman «. Fiske, 17 Pickering's {Massachusetts) Bep., 154 OUTLINES OF AN 234 ; Qorham d. Canton, 5 Qr.eenleaf's {Maine) Sep., 366;] if made previous to the event which raises the question. Kilburn «. Bennett, 3 Metcalf's Bep., 199 ; Ennis v. Smith, 14 Howwrd'g U. 8. Sup. Ct. Sep., 423. Even vrith this restriction, (Lockhart's Trust, 11 Irish Jurist, iV. 8., 345, 249,) the British courts do not seem to attach much importance to such declar- ations. The treaty between Prance and the Swiss Confederation, respecting the establishment of the members of the one nation within the other, June ' 30, 1864, 9 De Ckreq, p. 91, Art. II., provides, that to obtain a domicil or establish a vocation (forme un fetablissement) in Switzerland, Frenchmen must be furnished with a certificate of registration, stating their nation- ality, which shall be delivered to them by the French ambassador, after they shall have produced to him certificates of good character and con- duct, &c. In Louisiana, the following act has been passed in relation to political domicil : " Any alien coming into this State from a foreign country, or from any " State of the United States, or any citizen of the United States coming " into this State as aforesaid, shall after having resided one year without " any interruption in one of the parishes of this State, having in the mean- " time purchased or rented a house or room or parcel of land, or pursued " some profession or employment for a support, be considered as having " acquired a residence in the parish where such individual .has so resided, " and complied witli the above requisitions, by making proof of the same. " before any judge or justice of the peace within this State," (which such oiEcial is authorized to receive, record and certify;) "and the oath of the "individual applying, supported by the evidence of another, shall be " deemed sufficient proof." Louisiana Law of March 16, 1818, § 1; Bul- lard & Curry's Digest, p. 386. Absence on business of the State or of the United States does not, but a voluntary absence from the State for two years, or acquisition of residence out of the State, does forfeit the Louisiana residence. Id.,% 3. A rule very simUar to the one stated in the article above, was suggested by Mr. Westlake, and approved in discussion. See Transactions of Na- tional Association for Promotion of Social Science, 1868, p. 181. Presumption of no intention to change. 300. If tile written declaration mentioned in the last article is not made, an uitention to change the domicil is presumed not to have existed until the contrary is proved. The relative force of different facts as presumptive evidence of inten- tion, is specially considered in Westlahe, Private Int. Law, §§ 48, 49 ; Taylor on Evidence, § 167, (5th ed.) A change of domicil to a country where the person is a foreigner, is not so easily inferred as a change to one of which he is a member. Lord v. INTEKNATIONAL COBK. 155 Colvin, 38 Lcm Journal, Chancery, 373 ; 4 Drewry'a Sep., 433 ; Whicker V. Hume, 7 Sbtise of Lords Gases, 159 ; Moorhouse ». Lord, 10 Id., 386 ; Crookenden v. Fuller, 1 Law Times,, N. 8.,1^; Hegeman «. Fox, 31 Bar- bour's (NewYork) Bep., 483. Reverting to original domicil. 301. If a secondary' domicil is abandoned, with in- tent to re-acquire the original domicil," and the person, making the abandonment dies on the way to the origi- nal domicil, not only his domicil, but the derivative domicils dependent on his," are changed to his original domicil * from the time of the abandonment. ' If the abandoned domicil is the original domicil, death in transit does not change it. Graham v. Public Administrator, 4 Bradford's {NewYork) Surrogate Bep., 137; Bell ®. Kennedy, Xaw Bep., 1 Scotch Appeals, 331. " If the secondary domicil is abandoned without an intent to acquire any other determinate domicil, no change is produced. Lyall u. Paton, 35 Law Journal, Chancery, 746, 750. It was held, in Udny ■!). TJdny, Law Bep., 1 Scotch Appeals, 441, that the original domicil revives the moment a secondary domicil is aban- doned, and that it is of no importance whether the intention is to re-ac- quire the original domicil, or another secondary domicil, or whether there is no specific intention whatever except to abandon the existinir secondary domicil. The American cases certainly do not attribute any such adherent power to the original domicil. Story, § 47 ; Hegeman e. Fox, 31 Barbour's {New York) Bep., 477, 478 ; 1 American Leading Oases, 747, (4th ed.) And they are supported by the authority of Samgny, {Guthrie's Saoigny, § 359, p. 85.) See, al.'io, Boileux, I., p. 331 ; Westlake, § 40. ^ Allen V. Thompson, 11 Humphrey's {Tennessee) Bep., 538. ■* It is stated to have been doubted whether the derivative domicil of n child, acquired by his parent's adopting a new domicil during his minor- ity different from that of the child's birth, should be considered the child's original domicU, in such a case. MeLa/ren's Law of Wills and Sue cession, I., p. 6, § 13. Official or compulsory change of residence. 302. A change of residence, made in pursuance of official duty,' or made upon compulsion," except in case of personal incapacity, provided for in this Chapter, does not change the domicil. But any person having capacity to change his dom- icU, who, upon such change of residence, becomes sub- ject to the jurisdiction of the country in which he re- 156 OUTLINES OF AN sides, may acquire a domicil by residing there, with the intention of making that country his home. ' Westlake, Private Int. Law, § 44, states the following rules in refer- ence to ofBcial domicil . " An office which requires residence, confers a domicil in that place in which the holder is bound to reside." Under this rule, he instances an ecclesiastical cure, and a person in the East India service. "But ambassadors and consuls retain the domicil of the country which they represent or serve." It is well settled, however, that consuls may ac- quire a domicil for many purposes in the place of residence ; and the rule stated in the above article, allowing all officers subject to the local jjirisdictiou to do so, is suggested as embodying the principle that ought to control, whatever be the class of officers. It was held, in Sharpe «. Crispin, 38 LawJowmaL, (Probate,) 17; 1 Eng. Law JBep., (Probate & Dworee,) 611, that the mere residence in a foreign country as a public officer, gives rise to no inference of a domicil in that country ; but, (as was also held, in Heath v. Samson, 14 Beavan'a Sep., 441,) if one already there domiciled and resident, accept an office in the public service of another country, he does not thereby destroy his domi- cil. The acceptance of an irrevokable appointment for life, and a change of residence accordingly, sufficiently proves an intent to change the domicil. 4 PMllimore's Int. Law, §§ 104, 105. * Burton «. Fisher, 1 Milward, 183 ; Westlake, § 53 ; BoUeux, I., p. 330; Duranton, I., no. 373, p. 303 ; Chauveau sur Carre Pr., 337 ; Hardy ». De Leon, 5 Texas Rep., 337 ; Be Duchesse d'Orleans, 1 Swdbey • Mar. 4, 1865, Art. II., 9 De Ulercg, 189. burg, ) Grand Duchies of Meek- ) lenburg-Schwerin and ^une 9,1865, " IL, Q Id., 295. Strelitz, ) Russia, June 14, 1857, " I., '7 Id., 378. The English Judicature Commission (Report of 1869,) recommend that aliens having been resident ten years shall, if qualified, be liable to do jury duty. Military service. 358. Foreigners are exempt from military and naval service, except in the case of necessity for the purpose of defending the place where they are from brigands or savages. Bluntschli, Droit. Intern. CodijU, § 891. Freedom of foreigners from compulsory military and naval service is recognized by the treaties between the United States and Nicaragua, June 31 , 1867, Art. lX..,15U.a. Stat.at L., {Tr.,)m. Dominican Eepublic,Feb. 8, 1867, " 11., 15 Id., (Tr.,) 167. Paraguay, Feb. 4, 1859, " XI., 13 Id., 1096. Venezuela, Aug. 37, 1860, " II., 13 Id., 1144. Two Sicilies, . Oct. 1, 1855, " V., 11 Id., 639. Treaties between France and ' Russia, June 14, 1857, Art. ll.,7De Olercq, 378. Nicaragua, April 11, 1859, " IV., 7 Id., 586. Swiss Confederation, June 30, 1864, " IV., 9 Id., 91. (Extended to the) French ) g j^^ ^72. Colonies, ) Grand Duchy of Meck-1 lenburg-Schwerin (ex- tended to the) Grand ^une 9, 1865, " II., 9 Id., 395. Duchy of Mecklen- burg-Strelitz, J The Free Cities of Lubec, ) j^^^^-^ ^ ;^ggg „ ^ g j^^ i87. Bremen and Hamburg, ) By the treaty between the United States and the Swiss Confederation, Nov. 35, 1850, Art. II., (11 U. S. Stat, at L., 587,) the members of either nation residing in the other are free from personal military service, but are liable to the pecuniary or material contributions chargeable on ex- empt citizens. Heffter, Droit International, § 63, p. 135. Papers Relating to Foreign 192 OUTLINES or AN Affairs, 1863, p. 383. Mr. Stuart to Mr. Lenard, Sept. 6, 1868 : " The ordin- ■" ary claim for exemption of alien residents from military service does not " extend to service in the local police when imposed by the municipal "law, or in companies formed exclusively for the maintenance of internal "peace and order and for the protection of property." CHAPTER XXX. TAXATION. Aeticle 359. Jurisdiction to tax. 360. Taxes on the person. 361. Equality of taxes 363. Corporations. 363. Shipping. 364. Property in transit. 365. Debts, and evidences of debt. 366. Commercial paper. 367. No nation to tax national obligations of another. Jurisdiction to tax. 359. Subject to the provisions of this Chapter, each Tiation has exclusive power to impose taxes : 1. Upon all property vfithin its jurisdiction, vfhether movable or immovable ; ' 2. Upon all property of its domiciled residents, and of corporations existing by virtue of its laws, which is not within another jurisdiction ; and, 3. Upon the exercise of any vocation within its juris- diction. ' Taxes are a portion that each individual gives of his property in or- der to secure the perfect enjoyment of the remainder ; and the owner of property within the limits of any State, no matter whether it be real or personal, and no matter where he has his domicil, since he is entitled in respect to it to the protection of the State, is liable to taxes levied by such State. Duer ■». Small, 7 American Law Register, 500 ; and see Bluntschli, Droit Intern. Codifii, § 377. There are authorities, however, to the contrary, on the ground that double taxation, which this rule allows, is inequitable. People ea; r^l. Hoyt ■». Commissioners of Taxes, 23 Mew York Rep., 334. And see Report of Wells and others, Commissioners on local taxation in New York, (Har- .per's ed.,) pp. 43, 44,' 45. INTERNATIONAL CODE. 193 Taxes on the person. 360. Taxes in respect to the person can only be im- posed by tlie nation in wMcli the person is domiciled. BluntacMi, (Dr. Int. God. , § 376,) qaali&es this by adding that the coun- "try of origin may levy certain taxes on its own members domiciled abroad, (for example, taxes for the assistance of the poor,) but that the State of the domicil is under no obligation in reference to the collection thereof. Equality of taxes. 361. No other or more burdensome taxes can be im- posed upon foreigners, whether in respect to person, property, or vocation, than on the members of the nation. Equality of taxes is secured by a number of treaties. See Treaty between France and Russia, June 14, 1857, Art. I., 7 I?e Olercq, 378. Peru. March 9, 1861, • " III., 8 Id., 196. Nicaragua, April 11, 1859, " IV., 7 Id., 586. Treaty between the United States and Nicaragua, June 21, 1867, Art. IX., 15 U. 8. Stat, at L., (Tr.,) 59. BluntsMi, in stating the rule on this point, qualifies it by adding that the State may demand a sum in payment for the privilege of sojourning in the country. Treaty provisions forbidding such burdens are now so common that it should seem advisable to discard that right. This rule, perhaps, should be qualified by excepting foreign corpora- tions, which it is usual, in some countries, to tax more heavily than do- mestic corporations. Corporations. 362. The interests of owners of shares in the capital of a corporation are taxable as the personal property of such owners. By the American law, the property of the corporation is distinguished from the interests of its shareholders, for the purposes of taxation, as well as for other purposes. A State has no power to tax the interest of bonds, (secured in this case by mortgage,) given by a railway corporation, and binding every part of the road, when the road lies partially in another State ; being one road cwned by a company incorporated by tlie two States. The effect of allow- ing such tax would be to enable each State to tax property beyond its own limits. Railroad Company v. Jackson, 7 WaMace'a U. 8. Supreme Court Rep., 263. 13 194 OUTLINES OF AN Upon considerations somewliat similar to those referred to, it may be suggested that shares in a corporation, as distinguished from the prop- erty of the corporation, should not be taxable. Shipping. 363. Shipping is taxable only by tlie nation whose character it bears. This is the rule laid down in Hays «. Pacific Mail Steamship Co., 17 Howard's U. 8. Sup. Gt. Bep., 596, as applicable at least so long as the vessel gains no situs in the foreign State. See also People ex rel. Hoyt v. Commissioners of Taxes, 23 Weio York Sep., 340 ; and Report of Wells and others. Commissioners on Loeai Tax- ation. Harper's ed., p. 45. Property in transit. 364. Property of a foreigner, in transit between dif- ferent jurisdictions, whether actually in motion or awaiting directions or means of transportation, is only taxable under ordinary revenue laws applicable to im- portation or exportation. This rule appears to be generally recognized. The power to tax prop- erty sent into a State, and lying there awaiting sale, seems clear, although the policy of it is questioned. Report of Wells, and others. Commission- ers, on Local Taxation, Harper's ed., p. 45. The treaty between the United States and Belgium, 1858, Arts. XII. and XVI., (13 U. 8. Stat, at L., 1046,) provides that during the period allowed by law for the ware- housing of goods, no duties, other than those of watch and storage, shall be levied on articles brought from either country into the other, while awaiting transit, re-exportation, or entry for consumption. And articles, the transit of which is allowed in Belgium, are exempt from transit duty there, when transportation is effected on Belgian rail- ways. Debts and evidences of debt. 365. Debts, and the evidences thereof, due from domiciled residents of a nation to another nation, or domiciled residents therein, are not taxable in either. Sound political economy forbids the taxation of evidences of debt. (See Report of Wells, and others, Com'rs, on LooaZ Taxation, Harper's ed., p. 45. They are instruments of commerce. The systems of England and Prance are understood to recognize this principle. It is for each nation to adopt such a rule or not, for its own members ; but in an international point of view, it is suggested that this rule should be observed. It leaves all tangible property to be taxed according to the previous rule. INTERNATIONAL CODE. 195 Commercial paper. 366. Negotiable instruments made in one country, to be negotiated or paid in another, are not taxable, except by stamp duties in the nation where made, ' and that where transferred. ' This rule is new. A tax on the business of a dealer in exchange is not a tax on bills or commerce. Nathan v. Louisiana, 8 Howard's XT. 8. Sup. Ot. Sep., 73. By the English law, foreign bills are liable to stamp duty, when paid, in- dorsed, transferred, or otherwise negotiated within the United Kingdom. GriiEu v. Weatherby, Law Sep., 3 Queen's Bench, 753. JYo nation to tax national obligations of another. 367. No nation can tax the national obligations of another ; nor its own obligations, except in the hands of its own members. This rule is suggested as founded in comity, and one that will, on the whole, be equal and just in its operation. The report otWells, and others, Com'rs, on Local Taxation, (Harper's ed., p. 66,) states that, "England, Austria and Italy tax the non-resident holders of their national debts at the place where the debt is held to have been created or is now inscribed." 196 0T7TLIJfES OF AN PART III. UNIFORM REGULATIONS FOR MUTUAL CONVENIENCE. Title XI. Shippino. XII. Imposts. XIII. Qtjaeantinb. XIV. Railways. XV. Telegraphs. XVI. Postal Sektice. XVII. Pateitts. XVIII. Tkadb Marks. XIX. COPTBIGHTS. XX. Monet. XXI. Weights and Measukes. XXII. Longitude and Time. XXm. Sea Signals. XXIV. Bills of Exchange. CoMMBECiAL Eegtjlations. — A number of provisions affecting com- merce are contained in the preceding Chapters of this Book, particularly in Chapter VI., on Navigation ; in Chapter IX., concerning Fisheries; in Chapter XVIII., Section II., entitled the Extradition oe Deserters, and in Titles IX. and X., relating to the Duties op a Nation to For- eigners, and the Duties op Foreigners to the Nation. Those provisions are there placed, because they define what are regard- ed as the intrinsic rights of nations, or are propesed as modifying the absolute rights there stated. The provisions of this Part, although to some extent cognate to those above referred to, have an independent character, as a system of regula- tions founded not so much on questions of right and obligation, as on the convenience of having uniform rules for the facilitation of commer- cial and social intercourse ; and they are, tnerefore, presented here, in connection with others originating in the same general purpose. INTERNATIONAL CODE. 197 TITLE XI. SHIPPING. Ohapteh XXXI. General provisions. XXXII. Rules of navigation, [law of the road at sea.] XXXIII. Collision. XXXIV. Average. XXXV. Salvage. CHAPTER XXXI. GENERAL PROVISIONS. Abticlb 368. Definition of " ship.'' 369. " Appurtenances " defined. 370. Employment of ships. 871. Foreign navigation. 373. Domestic navigation. 373. Foreign and domestic ships distinguished. 374. Owner for the voyage. 375. Registry, enrollment and license. 376. Value of ship. 376a. Responsibility, if death ensue from shipwreck. 376b. Presumption of negligence. Definition of " sMp.^' 368. The term " ship," as used in this Code, signifies any structure fitted for navigation. Every kind of ship is included in the term " shipping." '■^Appurtenances'''' defined. 369. The term "appurtenances," as used in this Code, in respect of a ship, includes all things belong- ing to the owners, which are on board of the ship, or attached to it, and are connected with its proper use for the objects of the voyage and adventure in which the ship is engaged. See 1 Parsons' Maritime Lam, 71. , Mnployment of ships. 370. Ships are engaged either in foreign or domestic navigation, or in the fisheries. 198 OUTLINES OF AN Foreign navigation. 371. Ships are engaged in foreign navigation, when passing to or from a foreign country, or in any service connected therewith. Domestic navigation. 372. Ships are engaged in domestic navigation, when passing, for carriage or traffic, between places within the same nation, or in any service within the nation, connected therewith.' Receiving or discharging part of a foreign cargo, or of foreign passengers, at one port, and another part of the same at another port, is not domestic navigation, as here defined. "" ' This will include both, the coasting trade and internal navigation. By the treaty between the United States and the Netherlands, Aug. 26, 1853, Art. IV., (10 U. S. Stat, at Large, 984,) the trade from island to island in the Eastern Archipelago, and from Atlantic to Pacific ports in the United States, is considered as coasting trade. ^ Convention between the United States and ^Re^uWi^c [ ^^^- ^' ^^^'^' ^^^- ^^^•' ^^ ^- ^- ^^°^- "* -^•' (^■') ^^'^■ Treaty between the United States and Bolivia, May 13, 1858, Art. III., 13 U. 8. Stat, at L., 1004. Venezuela, Aug. 37, 1860, " VII., 12 Id., 1147. Two Sicilies, Oct. 1, 1855, " XIII., 11 Id., 647. Netherlands, Aug. 26, 1852, " IV., 10 Id., 984. Foreign and domestic ships distinguished. 373. A ship, when within the limits of its own na- tion, is called a domestic ship ; within the limits of another nation, it is called a foreign ship. In the United States, a ship is called domestic or foreign in any State, according as it belongs to that State, or any other. In this Code, these words depend on nationality. Owner for the voyage. 374. If the owner of a ship commits its possession ' and navigation to another, that other, and not the owner, is responsible for its repairs and supplies. > As a general rule, the party that mans the vessel is considered as in possession. Palmer e. Graoie, 4 Washington's TT. S. Cirr,. Ot. Bep., 110; Mar- cardierj). Chesapeake Ins. Co.,8 Granch's U. S. Sup. Ct.Bep., 39; The Sch. Vol- unteer, 1 Sumner's U. S. Giro. Gt. Bep.. 551 ; Logs of Mahogany, 2 Id., 589, INTEKNATIONAL CODE. 199 Registry, enrollment, and license. 375. The registry, enrollment, and license of ships are regulated, in each nation, by its own laws. The national character of shipping is defined by Chapter XX. 3 Kent's Commen., 133 ; Hesketh v. Stevens,? Barbour's {N. F.) Rep., 488. Value of sMp. 376. The value of a ship, when not fixed or ascer- tained by agreement of the parties, is her value for sale at the port to which she belongs, less the expense of returning her there, including insurance. For a discussion as to tlie tests of value of a ship, see Transactions of National Association for Promotion of Social Science, 1863, p. 875. 376a, In every case of shipwreck, by collision or ■other cause, if death is the result, the legal represen- tative of the person deceased shall be entitled to com- pensation for all losses occasioned by such death. Conformable to late statutes in America and England. 376b. In every case of shipwreck, from any cause other than collision, the owner of the ship shall be presumed in fault, and held liable to all persons ag- grieved, for any loss thereby ; but such presumption may be rebutted by proof, that so far as he had the means of knowing or controlling the construction, equipment or navigation of the ship, he had used due diligence to guard against the disaster. Nevy. CHAPTER XXXII. RULES OP NAVIGATION, [LAVSr OF THE ROAD AT SEA.] The provisions of this Chapter are those issued in pursuance of the British Merchant Shipping Act, 1862, Table c, § 25, made applicable, by consent of the nations, to the ships of the following countries, whether within British jurisdiction or not. British Order in Gounril, July 30, 1868. Austria. Chili. Greece. Argentine Republic. Denmark Proper. Hamburg. Belgium. Equator, Republic of the. Hanover. Brazil. France. Hawaiian Islands. Bremen. Great Britain. Hayti. 200 OUTLINES OF AN Italy. Peru. Sweden. Lubeck. Portugal. Turkey. Mecklenburg-Schwerin. Prussia. United States, sea-goingf Morocco. Roman States. sMps. Netherlands. Russia. United States, inland Norway. Schleswig. waters. Oldenburg. Spain. Uruguay. Akticle 377. Law of the, road at sea. Rule 1. Steam and sail. 2. Night-lights. 3. Lights for sea-going steamships. 4. Lights for steam-tugs. 5. Lights for sailing ships 6. Exceptional lights for small sailing ships. 7. Lights for ships at anchor. 8. Lights for pilot vessels. 9. Lights for fishing vessels and boats. 10. Fog-signals. 11. Two sailing ships, or two ships under steam„ meeting. 13. Two sailing ships crossing. 14. Two ships under steam crossing. 15. Sailing ship and ship under steam. 16. Ships under steam to slacken speed. 17. Ships overtaking other ships. 18. Construction of preceding rules. 19. Proviso to save special cases. 20. No ship under any circumstances to neglect proper precautions. 378. Duty of succor. Law of the road at sea. 371. The following rules of navigation constitute the- law of the road at sea : In addition to which, all rules concerning the lights or signals to be carried by ships navigating the waters of any harbor, river, or other inland water, or concern- ing the measures for avoiding collision, to be taken by such ships, which have been, or may hereafter be, made by or under the authority of any local law, shall be and continue of full force and effect in respect to do- mestic ships in all cases, and in respect to foreign ships having notice of such. rules ; but foreign ships, which are not shown to have had notice thereof, are not bound thereby. INTERNATIONAL CODE. 201 Merchant Skipping Act of 1854, § 31 ; modified by inserting the ex- emption of foreign ships without notice. The local regulations of a harbor have been held by the American courts not to be applicable in questions of collision, as against foreign ships- engaged in general commerce. Such a ship carrying the light required by the admiralty rules, is not in fault for not showing a different one re- quired by local law. The New York e. Rea, 18 Soward's U. S. Svy). Ct. Hep. , 323 ; Snow v. Hill, 20 Id., 543. But see, also. The James Gray v. Th& John Frazer, 21 Id., 184; The E. C. Scranton, 3 Blatchford's V. S. Oirc. Gt. Bep., 50 ; Smith v. Condry, 1 Soward's U. S. S-wp. Ct. Bep., 28. And compare Article 60, concerning restrictions on the right of navigation. SteaTn and sail. Rule 1. In the following rules, every steamer which is under sail and not under steam, is to be considered a sailing ship ; and every steamer, which is under steam, whether under sail or not, is to be considered a ship under steam. Article 1 of British Begvlations, 1868. NigM lights. Rule 2. The lights mentioned in the following rules, numbered 3, 4, 6, 6, 7, 8 and 9, and no others, must be carried in all weathers, from sunset to sunrise. Article 3 of British Begulatipns. The meaning is that the lights shall be fairly visible. See Nymph of Chester, Salt's Bute of the Boad at Sea, p. 34. Lights for sea- going steamships. Rule 3. Sea-going steamships, when under way,* must carry : 1. At the foremast head," a bright white light, so constructed as to show an uniform and unbroken light over an arc of the horizon of twenty points of the com- pass, so fixed as to throw the light ten points on each side of the ship, viz., from right ahead to two points abaft the beam on either side, and of such a character as to be visible on ' a dark night, with a clear atmos- phere, at a distance of at least five miles ; 2, On the starboard side, a green light, so construct- ed as to show an uniform and unbroken light over an arc of the horizon of ten points of the compass, so 202 OUTLINES OF AN fixed as to throw the light from right ahead to two points abaft the beam on the starboard side, and of such a character as to be visible ' on a dark night, with a clear atmosphere, at a distance of at least two miles ; 3. On the port side, a red light, so constructed as to show an uniform and unbroken light over an arc of the horizon of ten points of the compass, so fixed as to throw the light from right ahead to two points abaft the beam on the port side, and of such a character as to be visible ' on a dark night, with a clear atmosphere at a distance of at least two miles ; 4. These green and red .side lights' must be fitted with inboard screens, projecting at least three feet for- ward from the light, so as to prevent these lights from beiag seen across the bow. Article 3 of British Regulations. See The Louisa «. Tlie City of Paris, Holt's Rule of the Moad, p. 15. ' A vessel witli her aaclior down, but not actually holden by and under the control of it, is "under way," within the meaning of the Admiralty regulation, (1858,) and is bound to exhibit colored lights. The Esk ; The Gitana, Law Sep., 2 Adm. & Ecc, 350. A vessel driven from her anchor by a gale of wind, and setting sail to get out to sea, is, even if wholly unmanageable, " under way," within the meaning of the Admiralty regulation, (1858,) and is bound to exhibit colored lights ; and an omission to exhibit them is negligence. George Arkle, Lushington's Hep., 383. ' It has been proposed that there be added after "foremast head," the words, " or below the foreyard, where it can be best seen." Jenkins' Rule of the Road at Sea, p. 68. 2 The lights must be so placed as to be visible to an approaching vessel on that side. Lamps duly screened and fixed on stands secured to the paul-bitts of the windlass, are not placed in a proper position, as required by the regu- lations of 1863, respecting lights. The Gustav ; The New Ed, 9 Law Times Rep., {N. 8.,) 547. ■• The insertion of the words " shall be carried," after " red side lights,'' has been proposed. Jenkins' Rule of the Road at Sea, p. 68. Lights for steam-ti^gs. Rule 4. Steamers, when towing other ships, must cany two bright white masthead lights vertically, in addition to their side lights, so as to distinguish them from other steamers. Each of these masthead lights INTERITATIONAL CODE. 203 must be of the same construction and character as the masthead lights which other steamers are required to carry. Article 4 of British Begulaiions. Lights for sailing sMps. Rule 5. Sailing ships under way, or being towed, must carry the same lights as steamers under way, with the exception of the white masthead lights, which they must never carry. Article 5 of the British Regulations. A proposed modification printed in Jenkins' Rule of the Road at Sea, (p. 69,) would substitute the following for the above : " Sailing ships under weigh, or being towed, shall carry side lights only, namely, a green light on the starboard side, and a red light on the. port side, (of the same character, and in the same relative position, and screened similar to those of steamers, as in Article 3.) " " If a sailing ship is not astern of the towing steamer, but is lashed alongside of her, or has one on either side of her, then she shall carry a bright white light at the foremast head, or below the foreyard, (where it can be best seen,) in addition to the two side lights, and the steamer.s shall carry none." ' Lights astern. Any vessel seeing the lights of another coining up astern nf her, shall exhibit or wave a light at the stern until such vessel has passed." Exceptional lights for small sailing ships. Rule 6. Whenever, as in the case of small ships during bad weather, the green and red lights cannot bo •fixed, these lights must be kept on deck, on their re- spectiv^e sides of the ship, ready for instant exhibition, and, on the approach of or to other vessels, must be exhibited on their respective sides in sufficient time to prevent collision, in such manner as to make them most visible, and so that the green light shall not be seen on the port side, nor the red light on the star- board side. To make the u.se of these portable lights more cer- tain and easy, the lanterns containing them must each be painted on the outside with the color of the light they respectively contain, and must be provided witL suitable screens. Article 6 of British Regulations, as amended, 1863. 204 OUTLINES OF AN Lights for sMps at anchor. Rule 7. Ships, whether steamers or sailing ships, when at anchor in roadsteads or fairways, mnst ' ex- hibit, where it can best be seen, but at a height not ex- ceeding twenty feet above the hull, a white light,' in a globular lantern of eight inches in diameter, and so con- structed as to show a clear, uniform and unbroken light, visible all round the horizon, and at a distance of at least one mile. Article 7 of British Regulations. ' By Order In Council of January, 1863, the words " between sunset and sunrise," were omitted here. 2 It has been proposed to substitute the words, "a bright white light only," for the words " a white light," after " hull." Jenkirt^ Rule of the Road at Sea, p. 70. Lights for pilot vessels. Rule 8. Sailing pilot vessels must not carry any of the lights required for other sailiag vessels, except the side lights, but must carry a bright white light at the masthead, visible all round the horizon, and must also exhibit a flare-up light every fifteen minutes. Article 8 of British Regulations, changed so as to include side lights. Proposed alterations suggest that the range and intensity of the lights, and a fixed relative position for the side lights, should be deter- mined. JenMns' RvZe of the Road at Sea, p. 72. Lights for fishing vessels and boats. Rule 9. Open fishing boats and other open boats are not required to carry the side lights required for other vessels ; but if they do not carry such lights, they must carry a lantern having a green slide on the one side and a red slide on the other side ; and on the approach of or to other vessels, such lantern must be exhibited in sufficient time to prevent collision, so that the green light shall not be seen on the port side, nor the red light on the starboard side. Fishing vessels and open boats, when at anchor, or attached to their nets, and stationary, must exhibit a bright white light. Fishing vessels and open boats shall, however, not INTERNATIONAL CODE. 205 "be prevented from using a flare-up light in addition, if considered expedient. ' Article 9 of British Regulations. Fog- signals. Rule 10. Whenever there is fog, whether by day or night, the fog-signals described belov?- must be car- ried and used, and must be sounded at least every five minutes, viz. : 1. Steamers under way must use a steam- whistle, placed before the funnel, not less than eight feet from the deck ; 2. Sailing ships under way must use a fog-horn ; 3. Steamers and sailing ships, when not und er way, must use a bell. Article 10 of British Regulations. ; Two sailing ships, or two ships under steam, meet- ing. Rule 11.' If two sailing ships, or two ships under steam, are meeting, end on, or nearly end on, in such manner as to involve risk of collision, the helms of both must be put to port, so that each may pass on the port side of the other. ° This rule only applies ' to cases where ships are meet- ing end on, or nearly end on, in such a manner as to Involve risk of collision, and does not apply to two ships which must, if both keep on their respective courses, pass clear of each other. The only cases in which it applies, are when each of the two ships is end on, or nearly end on, to the other : in other words, to cases in which, by day, each ship sees the masts of the other in a Une, or nearly in a line, with her own, and, by night, to cases in which each ship is in such a position as to see both the side lights ■of the other. It does not apply, by day, to cases in which a ship sees another ahead crossing her own ■course ; or, by night, to cases where the red light of one ship is opposed to the red light of the other ; or, 206 OUTLINES OI' AN where the green light of one ship is opposed to the green light of the other ; or, where a red light without a green light, or a green light without a red light, is seen ahead ; or, where both green and red lights are seen anywhere but ahead. ' Articles 11 and 13 of British Regulations. 5 The following substitutes for the first paragraph have been proposed. [Jenkins' Rule of the Boad at Sea, p. 73:) " A sailing ship on the port tack shall keep out of the way of a sailing ship on the starboard tack, and a sailing ship which is to windward shall keep out of the way of a sailing ship which is to leeward." " A steamer having another end on, shall port. On her port side, shall port." 'The qualifications which follow are from the Order in Council of 1868. This amendment of the rule seems to have introduced uncertainty in its practical application. The collision of the Bombay with the Oneida, near Yokohama, Japan, January 34, 1870, gave rise to a discussion of the terms of this rule in the Pall Mall Gazette, issues of March 31st, 33nd and 84th, and April 13th, 1870. In the issue of the 31st March, a writer (" Byng Giraud ") avers, that collisions at sea are to some extent caused by what he supposes to be the unsettled state of the rule of the road at sea. And in the issue of the 34th March, the same writer quotes the lan- guage of Mr. S. Cave, Vice-President of the Board of Trade: "Colli- sions are not caused by observance, but by neglect or misconception of these rules." In the issue of March 33nd, a writer (" T. G.") says, in substance, as follows : Article 13 applies to two ships under steam, each meeting the other " end on, or nearly end on." In no other position than end on, or nearly end on, will each show to the other both her colored side lights. And in the case of such meeting, each ship is required by this Article to port, and each passes to the right of the other. This Article can never apply to one of two ships, (as as- sumed by " Byng Giraud," in letter of 31st instant,) and can never apply at all, unless it applies to both of " two ships meeting end on, or nearly end on." If one of two ships is required to act under this Article, they are both required to do sO; An Order in Council has expressly stated that this Article applies only to two steamships, (at night) " each of which is in such a position as to see both the side lights of the other." INTERNATIONAL CODE. 207 Article 14 applies to two ships under steam, each crossing the path of the other, so as to involve risk of collision. So long as the courses of the two ships cross, one of the ships will always have her red light exposed to the green light of the other — one is always to the left of the other. And this Article requires the one to the left to " keep out of the way of the other." So long as like is exposed to like^i. «., the green light of one ship is exposed to the green light of the other, or the red light of the one ship is exposed to the red light of the other — the ships are "passing ships," and there is no danger of collision. If each ship sees the red and green lights of the other, they are. "meeting end on, or nea/rly end on." So long as a green light is exposed to a red light, the ships must be " crossing ships," and collision is almost inevitable, unless the one to the left keeps out of the way. In the issue of the 24th March, a writer (" E. E. Hooppell ") suggests, that the simple revision required is the leaving out from the rules the words " or nearly end on," as being ambiguous and misleading. ^ This suggestion wa,s approved by " Bynd Qiraud," in the same journal. Two sailing sMps, crossing. Rule 12. When two sailing ships are crossing, so as to involve risk of collision, if they have the wind on different sides, the ship with the wind on the port side must keep out of the way of the ship with the wind on the starboard side, except when the ship with the wind on the port side is close-hauled, and the other ship free, in which case the latter ship must keep out of the way.' But if they have the wind on the same side, or if one of them has the wind aft, the ship which is to windward must keep out of the way of the ship which is to leeward. Article 13 of British Regulations. ' Cited and applied in Dean ■». Mark ; The "Constitution," 2 Moore's Privy Council Hep., (JV. S.,)453 ; 10 Jurist, 831 ; 10 Lom Times Sep., (iV. 8.,) 894. Two ships under steam crossing. Rule 14.' If two ships under steam are crossing, so as to involve risk of collision, the ship which has the other on her own starboard side must keep out of the way of the other." ' Article 14 of British Regulations. Article 13 is superseded by Eule 11. 208 OUTLINES OF AN ' The words " shall starboard and stop, and reverse if necessary," have been proposed to be substituted for " shall keep out of the way of the •other." Jenkins' Rule of the Boad at Sea, p. 73. Sailing ship and ship under steam. Eule 15. If two ships, one of which is a sailing ship, and the other a steamer, are proceeding in siich direc- tions as to involve risk of collision, the steamer must keep out of the way of the sailing ship. Article 15 of British Begulaiions. It has been proposed to substitute the following in place of this rule : " A steamship shall keep out of the way of a sailing ship." Jenkins' Bule of the Boad at Sea, p. 73. The American rule permits a steamer to go either to the right or the left of a sailing ship, which has the wind free. The Osprey, Sprague's Decisions, 345 ; Steamer Oregon v. Eocca, 18 Howa/rd's IF. S. Supreme Ot. Sep., 570. The English statute rule requires her to go to the right. 17 & 18 Viet., c 104, § 396. The principle upon which the steamship is liable, even though the sail- ing ship is culpable,, is laid down in Inman v. Reck ; The City of Ant- werp, and The Friedrich,87 .Law Jour. Adm., 35 ; 3 Law Sep., P. 0., 35. Ships under steam to slacken speed. Rule 16. Every steamer, when approaching another ship, so as to involve risk of collision, must slacken her speed, or, if necessary, stop and reverse, and,' ■every steamer, when in a fog, must go at a moderate rate of speed. Article 16 of British Begulations. ' Alterations proposed omit all but the last clause. JenHns' Bule of the Boad at Sea, p. 78. Ships overtaking other ships. Rule 17. Every ship overtaking another, must keep ■out of her way. Prom Article 17 of British Begulations, Construction of preceding rules. Rule 18. Where, by the rules of navigation con- tained in this Code, one of two ships is to keep out of the way, the other shall keep her course, subject to the qualifications contained in the next rule. Article 18 of British Begulations. INTERNATIONAL CODE. 209 Proviso to save special cases. Rule 19. In applying the rules of navigation con- tained in this Code, due regard must be had to all dangers of navigation, and to any special circumstan- ces which may exist in a particular case, rendering a ■departure from the rules necessary, in order to avoid immediate danger. Article 19 of British Begiildtions. If a ship bound to keep her course under the 18th sailing rule of 1863, justifies her departure from that rule under the 19th rule, she takes upon herself the obligation of showing not only that her departure was, at the time it took place, necessary, in order to avoid immediate danger, but also that the course adopted by her was reasonably calculated to avoid that •danger. The Agra and Elizabeth Jenkins, Law Sep., 1 P. C, 501; citing Solt, Rule of the, Road, p. 101 ; The George Dean v. The Constitution, Admiralty Court, 1 Feb., 1865 ; the Planet «. The Aura, Admiralty Court, 7 Dec, 1865. A departure from a rule or usage is not only justified when a compliance would be dangerous from special circumstances, but becomes a positive duty when such compliance would endanger or injure another vessel, and then a compliance with the rule or usage would be no excuse. Allen ■». Mackay, Sprague'a Decisions, 319; The Vanderbilt, J.6Joif s Adm. Rep., 361; TheFriends.l W. Robinson's Rep., ^1%; The Commerce, 3 /d, 387; The Steamer Oregon «. Eocca, 18 Howard's U. 8. Sup. Ct. Rep., 573 ; Crockett IB. Newtown, Id., 588 ; 3 Parsons on Contracts, 313. JVo ship under any circumstances to neglect proper precautions. Rule 30. Nothing in the rules of navigation contained in this Code shall exonerate any ship, or the owner, master, or crew thereof, from the consequences of any neglect to carry lights or signals, or to keep a proper lookout, or of the neglect of any precaution which may be required by the ordinary practice of seamen, or by the special circumstances of the case. Article 30 of British Regulations. Alterations proposed {Jenkins' Rule of the Road at Sea, p. 74,) omit this and the two preceding rules, and substitute the following: " Every steamship must carry a compass on the bridge." Dutp of succor. 378. It is the duty of all persons on the high seas to render assistance to ships or persons in distress, 14 210 OUTLINES OF AN whether from collision or otherwise, so far as it can be done with reasonable safety to themselves. The Germania, 31 Law Times Sep., (If. 8.,) 4A. By 25 & 26 Vict., c. 68, s. 33, in case of collision between two ships, it is the duty of "the person in charge " of each ship to render assistance to the other ; and, in case he fails to do so, without reasonable excuse, the collision shall, in absence of proof to the contrary, be deemed to have been caused by his wrongful act. This principle was applied in The Queen of the Orwell, 7 Law Times, (i^. S.,) 839 ; 11 Weekly Bep., 499. The "person in charge," intended by that section, is the master. The Queen ; The Lord John Eussell, Law Rep., 2 Adm. & Bee., 854. CHAPTER XXXIII. COLLISION. These rules are chiefly from the Civil Code, reported for New York, p. 115, and the &erman General Mercantile Law. For a discussion on the liability for collision at sea, see The Transactions of the British National Association for Promotion of Social Science, 1859, p. 216. Akticlb 879. Loss, how apportioned. 880. Faults of navigation. 381. Who liable. 382. Personal liability of wrong-doer. 383. Compulsory pilotage. 383a. Colliding ships to help each other. Loss, how apportioned. 379. Losses caused to ship, freight,' or freightage, by any' collision of two or more ships,' are to be borne as follows : 1. If either party was exclusively in fault, he must bear his own loss, and compensate the other for any loss he has sustained ; * 2. If either was in fault, the loss must be borne by him on whom it falls : ' 3. If both were in fault, the loss is to be equally di- vided,' unless it appears that there was a great dis- parity in fault, in which case the loss must be equitably apportioned; or, unless it appears that both parties INTEENATIOKAL CODE. 211 were willfully in fault, in which case the loss must be borne by him on whom it falls ; ' or, 4. If it cannot be ascertained where the fault lies, the loss must be equally divided.' * The Narragansett, Oleott, 246 ; Allen «. Mackay, Sprague's Decisions, 219. The word " freight " is used to designate whatever is borne, as most likely to avoid the use of the same word in two senses, freight be- ing in frequent use for the thing carried, as well as for the price of car- riage. ' These are applicable, whether one or both of the ships are sailing, drifting, anchored, or fastened to the Shore. Qterman Mercantile Law,% 738. ^ The owner of a vessel solely in fault is answerable for damages caused by a second vessel being driven by the collision against a third. Qerm. Merc. Law, § 741. * The Scioto, Baveis' Sep., 359 ; The Woodrop-Sims, 3 Sods., 83 ; The Sappho, 9 Jurist, 560 ; Reeves n. The Constitution, Oilpin's Sep., 579. Where repairs are practicable, the damages awarded must be sufficient to restore the injured vessel to the condition in which she was before the collision, without any deduction from new for old. The Baltimore, 8 WiiMace's U. 8. ikip. Ct. Rep., 377. * The Woodrop-Sims. supra; Stainback®. Rae, l^Moward's U. 8. Sup. a. Rep., 533 ; The Itinerant, 3 W. Robinson's Rep., 236 ; The Celt, 3 Hag- yard's Adm., 338, note. An inevitable accident is defined in The Virgil, 3 Robinson's Rep., 301), to be, " that which the party charged with the " offense could not possibly prevent by the exercise of ordinary care, cau- " tion, and maritime skill." The Uhla, 19 Law Times Rep., (iV. 8.,) 89. ' This is the rule in admiralty courts. Gushing ». The John Fraser, 31 Howard's U. 8. 8up. Ct. JSep.,184; Rogers «. The St. Charles, 19 Id., 108 ; The Cath-erine o. Dickinson, 17 Id., 177 ; Vaux «. Shefier, 8 Monre's P.rivy Council Rep., 75. It is otherwise at common law. Dorrell v. Gen. St. X. Co., 5 Ellis & Bla^Tcburn's Rep., 195 ; Gen. St. N. Co. ■». Mann, 14 Common Bench Rep., 137. See Barnes ». Cole ; 31 Wendell's {New Tork) Rep., 188. ' In this case, the court will not interfere in favor of either party. Sturgis «. Clough, 31 Howard's IT. 8. Sup. Ct. Rep., 451. 8 The Scioto, Daveis' Rep., 359 ; The Catherine of Dover, 3 Haggard's Adm., 145 ; Lucas v. The Swann, 6 McLean's U. 8. Giro. Of. Rep., 383 ; The Nautilus, Ware's Rep., 539. Faults of navigation. 380. Collisions caused by the want of compliance, on the part of any ship,, with the rules of Chapter XXXII., on Navigation, whatever may be the excuse lor such want of compliance," and collisions to whicli a ship not lawfully engaged in navigation is a party,' 212 OUTLINES OF AN are to be deemed caused by the fault of such ship. 1 The Emperor v. The Zephyr, SoU's Bute of the Soad, p. 34 ; 12 Week- ly Sep.. 890, Adm. ; The Pyrus v. The Smaler, JSblt'a Mule of the Mood, p. 40. Compare, however, Kissam v. The Albert, 11 Am. Law Reporter, {N. a.,) 41. ^ The Maverick, Sprague's JDeeisions, 33. It may perhaps be questioned whether this should be applied to ships without national papers. See Article 69. Who liable. 381. The party in fault, within the meaning of arti- cle 379, is the owner of that ship, defects in which, or in the appurtenances or management of which, or the acts or omissions of inmates of which, contribute to pro- duce the collision. The ship ' itself, and such freightage as is due," are also liable, but neither the freight nor the owners thereof.' ' The Ruby Queen, Luahington's Rep., 266. A honafide transfer without notice does not divest the injured party's lien, if he is not guilty of laches in enforcing it. Edwards v. The Stock- ton, Orabbe's Rep., 580 ; The Bold Buccleugh, S W. Robinson's Rep., 220 ; Harmer v. Bell, 7 Moore's Privy Council Rep., 367. But this lien, like every admiralty lien, maybe lost by delay to enforce it. The Admiral, 18 Zaw Reporter, 91. - German General Mercantile Law, Part VIII., Art. II., § 736 ; The Vic- tor, Luahington's Rep., 73. * Freightage on cargo due to the ship owner is liable ; deductions, as by charter, from gross freight, and reasonable deductions for non-delivery at port of destination, being allowed. The Leo, Luahington'a Rep., 444 : 81 Law Journal, Adm., 78 ; 6 Lomi Times, {N. S.,) 58. - Personal liability of vyrong- doer. 382. Article 379 does not affect the personal liability of the inmate of any ship for the consequences of his own fault. German Gen. Mercantile Law, Part VIII., Art. II., § 736 ; and see Haler. Washington Ins. Co., 3 Story's TT. 8. Giro. Gt. Rep., 176 ; The Wild Eanger, 33 Law Journal, Adm., 49 ; 7 Law Times, (W. S.,) 735 ; 9 Jurist (i^. 8.,) 134, Compulsory pilotage. 383. When the ship is in charge of a pilot, where INTERNATIONAL CODE. 213 pilotage is compulsory, and tlie crew have performed the duties required of them/ the owner and ship are not responsible for the collision if caused by the pilot ; ' but it is the duty of the State by which the employ- ment of the pilot was compelled, to indemnity the par- ties injured." ' In the Minna, Load Hep., 2 Adm. & Eoc. 97, the owners of a wrons:- doing ship having, by compulsion of law, a pilot on board, were held not to be exempt, under the 388th section of the Merchant Shipping Act, 1854, from liability for damages, where a neglect of duty on the part of the master conduced to the collision. ■■' German General Mercantile Law, Part VIII., p 740. Having a pilot on board is not an exoneration. The Carolus, 2 Gurtis' U. S. Circuit Ct. Rep., 69 ; Denison v. Seymour, 9 Wendell's (N'ew York) Sep., 9. ' This qualification is added, as being a reasonable condition to annex to compulsory pilotage. The expediency of the law of compulsory pilotage, so far as it exempts the owner of the wrong-doing vessel from all liability, was considered and questioned in The Halley, Law Rep., 3 Adm. di JfJcc, 3, where the plain- tiffs, owners of a foreign vessel, claimed damages for a collision between their vessel and an English ship, in Belgian waters. The defendants, the owners of the English ship, pleaded that, by the Belgian laws, pilotage was compulsory in the place where the collision occurred. It was held, that the plaintiffs were entitled to plead, in reply, that, by the same laws, the owner of the wrong-doing vessel, although compelled to take a pilot on board, continued liable for the damages. 383a. In every case of collision on the high seas, the colliding ships must stay by each other, so long as pos- sible, until the whole extent of the damage is ascer- tained, and all the relief afforded by the least injured ship, which it can possibly afford. New. CHAPTER XXXIV. GENERAL AVERAGE. Abticjle 384. Jettison. 385. Order of jettison. 386. By whom made. 387. General average. 388. Loss, how borne. 389. Loss, how adjusted. 390. Consular power. 391. Jettison of deck cargo. 392. Damage by water and breakage. 214 OUTLIJSTES OF AN Article. 393. Extinguishing fire on shipboard. 394. Cutting away wreck. 895. Voluntary stranding. 396. Carrying a press of sail. 397. Port of refuge expenses. 398. Wages and maintenance of crew in port of refuge. 399. Damage to cargo in discharging. 400, 401. Contributory values. Jettison. 384. A carrier by water may, when in case of ex- treme peril it is necessary for the physical safety of the ship or cargo,' throw overboard, or otherwise sacrifice, any or all of the cargo or appnrtenanc6s of the ship. Throwing property overboard for such purpose is called jettison. ' Lawrence «. Minturn, 17 Howwrd'a U. 8. Sup. Ct. Sep., 10(). This and several of the following Articles are, substantially, from the Civil Code, reported for New York, pp. 386, 337. " To constitute a case of general average," says Judge Marvin, {Se- port on Int. Oen. Ave.,) " three things must concur: Ist. There must be a common danger impending, in which ship, freight, and cargo participate. 3nd. There must be a sacrifice of a portion of the ship or cargo, or extra- ordinary expenses incurred for the purpose of avoiding that common peril. 3rd. The attempt to avoid the peril must be successful." " The English and French systems, as administered by the average ad- justers, in the absence of express decisions of the courts on the question, accord best with the idea, that the motive for making the sacrifice or in- curring the expense must be the common physical safety of the property ; and this attained, the general average charges cease, although the ship may noi have completed the voyage. The American system accords best with the idea, that the motive may be either the physical safety of the property, or the common benefit ; i. e., the arrival of the ship and cargo in company at the port of delivery. The English and French systems recognize the idea, that the community of interest is interrupted or sus- pended by the )anding of the cargo in a place of safety, however remote from the port of destination ; whereas the American system recognizes the community of interest as continuing, uninterruptedly, until the termination of the adventure." Order qf jettison. 385. A jeftison must begin with the heaviest and least valuable articles, so far as may be practicable. Code de Commerce, Art. 411. By whom made. 386. A jettison can be made only by authority of INTEmsrATIOJiTAL CODE. gl5 the master of a sMp, except in case of Ms disability, or of an overruling necessity, when it may be made by any other person. 3 Kent's Commentaries, 233. General average. 387. Except as hereinafter provided, all losses caused by jettison, and all damage done to ship or freight,' or both, by the master, or by his orders, when necessary for the physical safety of the ship or cargo," as also the consequential damage resulting therefrom, and the expenses incurred for the same purpose, are general average.' ' In addition to exceptions mentioned in the following Articles, the Q-er- man Mercantile Law excepts goods not represented by bill of lading or manifest, and money and valuables of which the master was not in- formed. § 710, sub. 3, 3. ' As to whether this should be extended'to sacrifices for the common benefit in other cases, see note to Article 384. ' " The question has been raised whether general average contribution is due when the danger originates in the mismanagement or fault of the master or owner of the cargo, or a third person. Some Codes provide, and among them the new German Code, that contribution shall in such case take place, but the party at fault shall not receive anything, but shall be liable to reimburse the other contributors." Marvin, Report on Int. Gen. Ave. Loss, how iorne. 388. A general average loss, ' when lawfully made, must be borne in due proportion by all that part of the ship, appurtenances, freightage and freight, for the benefit of which the sacrifice was made, and which was really saved, ° as well as by the owner of the thing sacrificed." ' By the German, General Mercantile Law, § 707, a claim for damage •belonging to general average is only so far set aside by a particular aver- age subsequently affecting the damaged article, (whether it be again dam- aged or totally destroyed,) as it is proved that the latter misfortune not only was in no way connected with the former, but that it would also have resulted in the former damage if this h{id not aiready been occasioned. If, however, before the occurrence of the latter misfortune, steps should •already have been taken to reinstate the damaged article, then the claim a]6 OUTIilNES OF AN for reimbursement liolds good so far as such steps are concerned. See- Barnard «. Adams, 10 Howard's U. S. Sup. Ct. Bep., 270, 303. '■' German General Mercantile LaiS, § 705. It is added there in §§ 706- and 7, that the obligation to contribute to general average from an article saved, is not annulled because the article is subject subsequently to par- ticular average, unless it is totally destroyed. That Code also provides that ammunition and provisions of the ship, wages and effects of crevp, and baggage of passengers do not contribute, §735. ' Lee V. Grinnell, 5 Duer's {New York) Rep., 431 ; Simonds ». White, ^ Barnewall & Orenawell's Hep., 805. But hy the German Mercantile Law,. an average loss does not in general constitute a personal liability. §728. I/OSS, how adjusted. 389. The proportions in which, a general average loss- is to be borne must be ascertained by an adjustment, in which the owner of each separate interest is to be- chai-ged with such proportion of the value of the thing lost as the value of his part of the property affected bears to the value of the whole. But an adjustment made at the end of the voyage, if valid there, is valid everywhere. ' 3 Kent's Commentaries, 333. ' Simonds ■». White, 3 Barnewall & Oresswell'a Sep., 805. The German General Mercantile La/w (§§ 711, &c.,) contains provisiona regulating the adj ustment in detail. Consular power. 390. A nation may give to its consuls power to ad- just averages and regulate repairs, in the cases of ships of such nation coming within the country of the con- sul's residence, when such acts are demanded by a party concerned who has no domiciL in the country, and there is no agreement between the parties for a dif- ferent mode of adjustment, or regulation of repairs. But a consular adjustment, or average, or regulation of repairs, made under this article, does not bind any person who is either domiciled in the country, or a. member of a third nation, unless he consents to the submission to the consul. Suggested by the treaty between the United States and France, Feb. 33,. 1858, Art. X., (10 U. 8. Stat, at L., 998,) which provides that cohsuls shall INTERNATIONAL CODE. 217 receive the declarations, protests, and reports of all captains of vessels of their nation, in reference to injuries experienced at sea. They shall examine and note the storage. . . In the absence of a stipulation to the' contrary between owners, freighters, and insurers, they shall be charged with the repairs .... If inhabitants of the country or members of a third nation are interested, and the parties cannot agree, the local author* ities shall decide. To the same etfect is the provision in the treaty between the United States and Belgium, Dec. 5, 1868, Art. XIII., IT. S. Cons. Beg., (1870,) 1 511. Italy, Feb. 8, 1868, " XIV., 15 U. 8. Stat, at L., {Tr.:^ 185. And as to consular power to settle damage to effects and merchandise shipped in such vessels, see treaty between the United States and New Granada, May 4, 1850, Art. III., 10 U. 8. 8tat. at L., 900. Jettison of deck cargo. 391. A jettison of timber or deals, or any other de- scription of wood freight, carried on the deck of a ship, in pursuance of a general custom of the trade in which the ship is then engaged, must be made good as gen- eral average, in like manner as if such freight had been jettisoned from below deck. No jettison of deck freight, other than timber or deals, or other wood so carried, is to be made good as general average.' Every structure, other than mast, spars and rigging, not built in with the, frame of the ship, below deck, is to be considered a part of the deck of the ship. This and the ten following articles are from the Report prepared by Judge William Marvin, in the Proceedings of the International Con- gress held at York, England, September, 1864, for the purpose of pro- moting a uniformity in the mode of adjusting general averages in the difEerent countries of the world. ' The American rule is, that the owner of things stored on deck, in case of their jettison, ia entitled to the benefit of a general average con- tribution only in ease it is usual to stow such things' on deck upon such a voyage. Lawrence ». Minturn, 17 Howards V. 8. Supreme Ct. Bep., 100 ; Sayward v. Stevens, 3 Oray's B'',p.,97 ; Smith v. Wright, 1 Gaines' Bep., 43 ; Lenox ■». United Ins. Co., 3 Johnson's Oases, {New York,) 178 ; Harris v. Moody, 4 Bosworth's {New York) Bep., 310 ; Gould «. Oliver, 4 Bing- ham's Bep., {N. C.,) 184 ; S. C, 2 Manning da Granger's Bep., 308 ; Mil- ward V. Hibbert, 3 Queen's Bench Bep., 120. The German General MerchantUe Lam, (§ 710,) recognizes, as an excep- tion, deck cargo in the coasting trade, when allowed by law. 218 OUTIilNES OF AN Damage by water and hreaTcage. 392. 33amage done by water which unavoidably goes down a ship's hatches opened, or other opening made for the purpose of a jettison, must be made good as general average, in case the loss by jettison is so made good.' Damage done by breakage and chafing, or otherwise from derangement of stowage consequent upon a jet- tison, must be made good as general average.' ' Such damage is considered as an accessory of the jettison, or the im- mediate direct consequence of making the jettison. German Gode, § 708 ; French Code, § 400; Holland Code, § 699 ; Baily, 171 ; 13 Pet&ra' U. S. Sup. Gt. Bep., 343 ; Phillips, § 1386. " This damage is rejected by the average adjusters in England and Belgium. To similar effect, however, is the consular convention between France and Portugal, July 11, 1866, Art, XV., 9 Be Glercq, 583. Austria, Dec. 11, 1866, " XIII., 9 Jd., 669. Brazil, Dec. 10, 1860, " X., 8/d, 153. Treaty between France and Peru, Mar. 9, 1861, Art. XXXII., 8 Be Glereg, 193. Convention between the United States and Italy, Feb. 8, 1868, Art. XIV., 15 U. 8. Stat, at L., {Tr.,) 185. Extinguishing fire on sMphoard. 393. Damage done to a ship and freight, or either of them, by water or otherwise, in extinguishing a fire on board the ship, is the subject of general average. This damage is rejected from general average in England, and admitted in the United States, Holland and Belgium. BaUy, 81 ; 5 Buer's (New York) Bep., 310 ; 35 Pennsylvania Bep., 866. Gutting away wreck. 394- Loss caused by cutting away the wreck or re- mains of spars, or of other things which have pre- viously been carried away by sea peril, is not to be made good as general average. This damage is not allowed in general average in England or the United States. It is allowed in France. So by the O&rman Mercantile Law, % 708. In Belgium, in practice, one-third of the value is considered as general average, one-third particular, and one-third new for old. In Holland, the value of the wreck, as such, is contributed for. INTERNATIONAL CODE. 219 Voluntary stranding. ' 395. When a sMp is intentionally run on shore be- cause slie is sinking, or driving on shore or rocks, the damage caused to the ship, the freight, and the freight- age, or any of them, by such intentional running on shore,, is not to be made good by general average. The question, says MoA-vin, {Report on Int. G-en. Ave.,) lias never been decided by the courts of England, but the uniform practice of the average adjuster is to disallow this loss or damage in general average. Baily, 75. In Prance and Spain, it is allowed in general average, provided the ship is got ofi with her cargo on board, or if, the cargo having been landed, she takes her cargo again on board, and proceeds to a port of refuge, or. re- sumes her voyage. M. Oauvet, §§ 345-7. But if the ship Is lost, there is no contribution. The Marine Ordinance of Louis XIV., declares that if the jettison does not save the ship, there is no ground for contribution. VaMn, Liv. 3, Tit. 8 ; Dujet et de la contri- bution; Spanish Code, Art. 933. The new German Code, § 708, declares that damages caused by a volun- tary stranding, in order to avoid capture or sinking, are general average; but if the stranding was in order to avoid sinking, and the ship is not got oflf, or, after being got off, is found incapable of repair, the damage is not general average. The maritime laws of Holland, Norway, Sweden, Denmark, and the United States, all make damage caused by voluntary stranding general average, and this without regard to the question whether the ship is sub- sequently refloated or not. Adams v. Barnard, 10 Howard's U. 8. Sup. Ct. Sep., 370; Columbian Ins. Co. «. Ashby, 13 Peters' U. S. Sup. Ct. Hep., 331. Carry a press of sail. 396. Damage occasioned to a ship or freight, by car- rying a press of sail, is not to be made good by gen- eral average. Covington i». Roberts, 3 Boaanquet & Ptdler's Sep., 378; lignet, 390, 394; GoAmet, % 353. The German Mercantile Law a.di.&s, (§ 709,) "when the press of sail was carried to avoid stranding or capture." Port of refuge expenses. 397. When a ship shall have entered a port of refuge, under such circumstances that the expenses of entering the port are admissible for general average, and when she shall have sailed thence, with her original freight, or a part of it, the corresponding expenses of leaving 220 OUTLINES OF AN the port shall likewise be so admitted for general aver- age ; and whenever the cost of discharging freight at such port is admissible for general average, the cost of reloading and stowing such freight on board the ship, together with all storage charges on such freight, are likewise admissible ; except that any portion of tlie freight left at such port of refuge, on account of its being unfit to be carried forward, or on account of tlie unfitness or inability of the ship to carry it, is not lia- ble to contribute to such general average. Wages and maintenance of crew in port of refuge. 398. When a ship shall have entered a port of refuge, under the circumstances mentioned in the last article, the wages and cost of maintenance of the mas- ter and mariners, from the time of entering the port until the ship shall have been made ready to proceed upon her voyage, are to be made good by general average : except that any portion of the freight left at such port of refuge, on account of its being unfit to be carried forward, or on account of the unfitness or ina- bility of the ship to carry it, is not liable to contribute to such general average. The conflict of authority on the question of port of refuge expenses, is fully discussed in Judge Marvin's Report, p. 30 ; citing MopMns, 45 ; Baily, 179-80; Hall v. Jansen, 4 SJllis & BlaoMburn's Hep., 500 ; Journal du Palais, vol. 73, p. 9 ; vol. 74, p. 613 ; vol. 75, pp. 189, 540; Oaavet, 363, 373, 374 ; Dalloz, Jurisp., Oen., 1864, p. 70; Antwerp Oustoms, iy Engles and Van Pebourgh; Guide Gerteralis des Ass. Mar., p. 374; Code de Com. of Spain ; Concordance outre les Codes, by St. Joseph ; Manuel de V Assure, Try Morel; Nelson «. Belmont, 31 New York Rep., 36; McAndrews ». Thatcher, 3 Wallace's U. 8. Sup. Ct. Rep., 347 ; Job v. Langtou, 6 Ellis da Blackburn's Rep., 779. Damage to cargo in discharging. 399. Damage done to freight by discharging it at a port of refuge, is not admissible for general average if such freight shall have been discharged at the place and in the manner customary at that port with ships not in distress. In practice, this damage is not allowed in general average by the Eng. INTERNATIONAL CODE. 221 lish adjusters, but is by the American. 1 Wallace, Jr.'s U. S. Giro. Oi. Sep., 356. And see CoAivet, § 372. Besides the foregoing classes of general average losses, the German Mercantile Lam includes : Hire of lighters, and damage by reshipping in lightening the ship ; § 708, s-ub. a. Ammunition, and. expenses of wounded and dead, and the compensa- tions, on a defense against enemies and pirates ; sub. 5. Redemption from capture, and maintenance, and ransom of hostages ; sub. 6. Losses and expenses of obtaining money during the voyage for pay- ment of general averege, and expenses of apportionment ; sub. 7. Contributory xalues. 400. The contribution to a general average must be made upon the actual values of the property at the ter- mination of the adventure, to which must be added the amount made good by general average for property sacrificed ; deduction being made from the ship-owner's freightage, and passage-money at risk, of two-fifths of such freightage, in lieu of crew' s wages, port charges, and all other deductions ; deduction being also made from the value of the property, of all charges incurred in respect thereof, subsequently to the arising of the •claim to general average. The provision on this subject in the Oiml Gode reported for New Yorh, ^. 387,) is as follows : In estimating values for the purpose of a general average, the ship and •appurtenances must be valued as at the end of the voyage, the freight- age at one-half the amount due on delivery, and the cargo as at the time and place of its discharge ; adding, in each case, the amount made good by contribution. See 3 Kent's Commentaries, 343 ; 5 JDuer's {New York) Rep., 439 ; 1 Gaines' Sep., 373 ; 2 Sergeant & Bowie's (Pennsylvania) Hep., 339. The same. 401. In every case in which a sacrifice of freight is Tnade good by general average, the loss of freightage, if any, which is caused by such loss of freight, is like- vrise to be made good. The principle of a limitation of the liability of the ship-owner to the •value of the ship and freight, for the acts and contracts of the master, is incorporated into the system of commercial law of France, Belgium, Hol- Jand, the German States, and probably every country on the continent of .Europe. French Gode, 316 ; Holland Code, 331 ; German Code, 453. 222 OUTLINES OF AS And, wlietlier the general average consists of sacrifices to be made good, or expenses to be reimbursed, the contributory values are the same and are the valjies saved at the termination of the adventure. In botli cases, if there is no salvage, there is no contribution. Oauve.t, § 418. But the English and American courts do not limit. the liability of the ship-owner to the value of the ship and freight. 7 Johnson's {New York) Rep., 413 ; 9 Massachusetts Rep., 548 ; 14 Id., 66 ; 3 Phillips, § 1374; 2 Arnould, 344 ; 5 Gommon Bench Rep., 380. And in the law of these countries, a distinction obtains, in certain cases, between sacrifices and expenditures, in fixing the contributory values in the adjustment of general averages. As to losses arising out of sacri- fices, the law is the same as in the other countries above named. But in adjusting losses arising from expenditures, not secured by bottomry or respondentia, the value of the property at the time the expenses are in- curred, is taken as the true contributory value, and contribution may be exacted in this case, though nothing is ultimately saved. 2 Phillips, § 1374; 2 Arnould, %% 344^849 ; 9 Massachusetts Bep., 548; Phillips' Be- neeke, 241. CHAPTER XXXV. SALVAGE. ABTICLB 402. When allowed. 403. Officers, seamen and pilots. 404. Forfeiture of salvage. 405. Special contract. 406. Amount, how fixed. 407. Apportionment between several salvors. When allowed. 402. Except as provided in the next article, any person " who rescues, or contributes to rescue ' from danger ° a ship, her appurtenances, cargo, or other property, against which a court of admiralty may give a remedy ; ' or who rescues, or contributes to rescue the lives of the persons belonging to such ship, ' is en- titled to a reasonable compensation therefor, to be paid out of the property saved/ Such compensation is termed sal-cage.'' ' It has been a mooted question in American courts, whether salvage INTEBSTATIONAL CODE. 223 should be awarded t■ Mar. 4, 1865, Art. X., 9 Be Olereq, 187. burg, ) Portugal, July 11, 1866, " XXVI., 9 Id., 558. Russia, June 14, 1857, " VII., 7 M, 378. By the convention between the United States and Belgium, July 17, 1858, Art. XI., (13 U. 8. 8tat. at L., 1043,) cargo retained on the ships of one nation while in the ports of the other, and destined for any foreign country, is not subject to any charges whatever other than those for the prevention of smuggling. The most favored nation clause, which is adopted between some Chris- tain powers, as well as with uncivilized or non-Christian States, seems to be a shifting rule, not adapted to a permanent Code. Fully stated, it seems to be as follows : " It being the intention of the two high contracting parties to bind themselves by the preceding articles, to treat each other on the footing of the most favored nation, it is hereby agreed between them, that any favor, privilege, or immunity whatever, in matters of commerce and navigation, which either contracting party has actually granted, or may hereafter grant, to the subjects or citizens of any other State, shall be extended to the subjects or citizens of the other high contracting party gratuitously, if the concession in favor of that other nation shall have been gratuitous ; or in return for a compensation as nearly as possible of proportionate value and effect, to be adjusted by mutual agreement, if the concession shall have been conditional." This is the form in which it appears in the treaty between the United States and Honduras, July 4, 1864, Art. III., 13 U. 8. Stat, at L., 699. See, also, to similar effect, treaty between France and Netherlands, July 7, 1865, Art. XXXVIII.,92)«CT«?-C3',337. Free Cities of Lubeck, ) j^ ^^ggg „ XXH., 9 JcZ., 187. Bremen and Hamburg, ) Grand Duchy of Meek-" lenburg - Schwerin — (extended to the) Grand Duchy of Mecklenburg- Strelitz, -June 9. 1865, " XXUL, 9 Id., 395. 234 OUTLINES OF AK For the exception to the most favored nation clause in faVor of frontier trafla c, F.ederal laws, &c. , see the treaty between Great Britain and Austria, Dec. 16, 1865, Art. II., Aeeounta and Papers, 1866, vol. LXXVI., (38.) The treaty between Great Britain and Prussia, above referred to, pro- vides for " equality of treatment with native subjects in regard to cliarges on loading and unloading, to warehousing and the transit trade, as also in regard to bounties, facilities, and drawbacks." Some of the treaties are, like Article 409, much more general than the treaties above referred to. For instance, the language of the recept treaty between Great Britain and Prussia, August 16, 1865, Art. I., {Accounts and Papers, 1866, vol. LXXVI., 38,) is as follows : " British ships and their cargroes shall, in Prussia, and Prussian ships and their cargoes shall, in the United Kingdom of Great Britain and Ire- land, from whatever place arriving, and whatever may be their place of destination, and whatever may be the place of origin or destination of their cargoes, be treated in every respect as national ships and their cargoes. " It is, however, agreed that the preceding stipulation shall hot affect the rights connected with fishery belonging exclusively to the subjects of either country, within their respective marine territorial limits, nor the local immunities enjoyed in Great Britain not by British subjects gen- erally, but only by certain privileged classes in certain posts." By the treaty between the United States and The Two Sicilies, Oct, 1, 1855, Art. VI., (11 U. 8. Stat, at L., 643,) it is provided that the reciprocity established shall not extend to premiums which either nation may grant to their own citizens or subjects to encourage the building of ships to saU under their own flag. ' Treaty between the United States and The Two Sicilies, above cited ; Bolivia, May 13, 1858, Art. IV., (12 U. 8. Stat, at L., 1006 ;) Hayti,Nov.3, 1864, Art. XL, (13 la., 711.) A similar provision is contained in the treaty between France and the Grand Duchy of Mecklenburg-Schwerin, (extended to the) Grend Duchy of Mecklenburg-Strelitz, June 9, 1865, Art. VIII., 9 Be Olercq, 295. Compare treaty between France and Russia, June 14, 1857; Art. XIL, 7/d, 278. -: Restrictions on examination of cargo and charges. 410. Except as otherwise provided in this Code, for- eign ships cannot be subjected to account for their freight, unless preparing to discharge it ; nor to pay any charges, unless they enter port ; and then only such as are chargeable upon domestic ships in the like cases. '..._ Suggested by treaties between the United States and Prussia, 1785, (8 U. a. Stat, at L., 84 ;) Bolivia, May 13, 1858, Art. IIL, (12 Id., 1005,) which have a. provision to the effect that no examination required by the laws of rNTEENATIONAL CODE. 235 either nation, of property laden in its ports on the ships of the other, can be requireiafter the lading ; and such ships shallnot be searched, unless property has been clandestinely and illegally laden ; in -which case, the person by whose order it was carried on board, or who carried it without order, is liable to the local law; but no other person shall be molested, nor shall any other goods, nor the vessel, be detained for that cause. It does not,, however, seem desirable to recognize such a rule as of gen- eral obligation. Ships exempt from tonnage dues. 411. The following ships are jEree jErom tonnage dues on entry, sojoiirn, or departure : 1. Public armed ships ; 3. Ships which, entering in ballast from whatever place, neither discharge ballast, nor take in freight ; 3. Ships which, passing from one port to another of the same nation, whether it be to discharge all or a part of their freight, or to lade freight, have already paid such charges ; 4. Steamships engaged in the postal service, or the transportation of travellers and their baggage, and ia no other commerce ; 5. Ships which, entering a port, whether voluntarily or by stress, leave it without performing any act of commerce ; ' and, 6. Pleasure yachts, the passports of which state their quality as such, and which have on board no goods subject to duty, and leave port without performing any act of commerce." ' Subdivisions 3, 3, 4 and 5 are from the treaty between France and Portugal, July 11, 1866, Art. XXVII., (9 Be Glereq, 558;) Sweden and Nor- way, Feb. 14, 1865, Art. VIL, (9 Id., 173.) ' The declaration between France and several other continental Powers, (7 De Glereq, 633, 636,) provides that such yachts are free from all duties of na,vigation, but requires that they carry away all persons who arrived by thein. The treaties between France and the Free Cities of Lubeck, Bremen and Hamburg, March 4, 1865, Art. IX., (9 De Glereq, 187;) and with the Grand Duchy of ■ Mecklenburg-Schwerin — (extended to the) Grand Duchy of Mecklenburg-Strelitz, June 9, 1865, Art. IX., (9 Id., 395,) are to similar effect, except that they do not mention steamships as aboVe, and the first mentioned does not declare such vessels free from tax, but only puts them upon the same:footing as domestic vessels. 236 OUTLINES OF AN What acts not to be considered acts of commerce. 412. The following acts in a port of refuge are not to be considered as acts of commerce, within the last article : 1. Unlading and relading merchandise for the repair or purification of the same, or of the ship ; 2. The transfer of merchandise from one ship to another, in case the former proves unseaworthy ; 3. Expenditures necessary for food and equipment ; and, 4. The sale of damaged freight,, by authority of the proper revenue officers. Treaty between France and Sweden and Norway, Feb. 14, 1865, Art. VII., 9 De Olercq, 172. ^Treminlnd Ha^ig: } ^^ ^' '^^^' " ^^■' » ^^■' ^^'- Computation of tonnage. 413. All tonnage dues on a foreign ship bearing a passport such as is prescribed by article 278, must be reckoned either according to the tonnage stated in the passport, or according to the mode of measurement in use in the port where the ship lies, as the master may elect. Treaty between France and Grand Duchy of Meck- lenburg-Schwerin (ex- tended to the) Grand Duchy of Mecklen- burg-Strelitz, Austria, Dec. 11, 1866, " II., 9 Id., 658. Pontifical States, July 29, 1867, " XI., 9 Id., 739. Honduras, Feb. 22, 1856, " XI., 7 Id., 10. JException as to fisheries, coasting trade, and inter- nal navigation. 414. The provisions of this Title do not prevent a, nation from giving to its members, or to domestic ships ' of any kind,' exemptions, privileges, or exclusive rights in reference to : 1. The national fisheries, or their produce ; ' or, June 9, 1865, " V., 9 Id., 295. INTEKITATIONAL CODE. 237 2. Domestic navigation,* as defined by article 372. ' The usual language of the treaties is, that the Articles in question do not apply to the coasting trade, &c. ; but it is suggested here to make the equality apply, as hetween foreign ships, reserving the right of a nation to give exclusive or other privileges to its own people and ships over all Others. See treaty between Great Britain and Prussia, Aug. 16, 1865, {Accounts and Papers, 1866, vol. LXXVI., 38.) The treaty between France and the Grand Duchy of Mecklenburg- Schwerin, (extended to the) Grand Duchy of Mecklenburg-Strelitz, June 9, 1865, Art. VII., (9 Be Clercq, 295,) provides that the vessels of either power engaged in internal navigation, shall be treated on the same foot- ing as vessels of the most favored nations. ' Treaty between the United States and The Two Sicilies, Oct. 1, 1855, Art. XIII., 11 U. 8. Stat, at L. 647. ' Treaty between Prance and Austria, Dec. 11, 1866, Art. IX., 9 Be Clercq, 658. Pontifical States, July 39, 1867, " XVII., 9 Id., 739. And other French treaties. ■* Treaty between France and Sweden and Norway, Feb. 14, 1865, Art. V., 9 Be Clercq. 173. Austria, Dec. 11, 1866, " V., 9 Id., 658. Pontifical States, July 29, 1867, " XIII., 9 Id., 739. Commercial travellers. 415. No nation shall impose a license tax npon com- mercial travellers seeking orders or making purchases for their principals in another nation, and carrying no merchandise other than samples. This provision is from the commercial treaty between France and Swit- zerland, Jane 30, 1864, Art.^XXVI., (9 Be Clercq, 56,) which, however, pro- -vides also, that such travellers shall be duly authorized by their own gov- ■ernment, according to the formalities to be agreed upon between the two nations. Treaty between France and Austria, Dec. 11, 1866, Art. XV., 9 Be Clercq, 646. To very similar eflect are the following: Trpaty between France and Sweden and Norway, Feb. 14, 1865, Art. XV., 9BeOlercq,-\SX. Portugal, July 11. 1866, " IX., 9 Id., 558. Free Cities of Lubeck.) j^^^j. 41365, " XVI., 9 7d!., 187. Bremen and Hamburg, ) ■Grand Duchy of Meck-1 lenburg - Schwerin — J „ , „„_ (extended to the) Grand ^une 9,. 1865, " XIX., 9 Id., 295. Ducby of Mecklenburg- ] Strelitz, J 238 OUTLINES OF AK The treaty between France and Belgium, April 27, 1854, Art. XIX., (6 De Glercq, 430,) subjects commercial trayellers to a tax. For the rule adopted between France and Switzerland, see 9 De Glercq, 319. The provisions of the protocol between France and The Free Cities, in reference to regulations for commercial travellers, and the importation of samples, provided for annual licenses in two forms — one for manufacturers and merchants, and the other for commercial travellers; and also for offices in each country, for the inspection and admission of samples. 9 Be Olereq, 30. Duty on samples. 416. Dutiable articles, when carried as samples un- der the last article, shall be admitted, temporarily-, free of duty. But proper security maj be required for their re-exportation. This provision is from the commercial treaty between France and Swit- zerland, June 30, 1864, (9 De Glercq, 56,) which also provides that the necessary formalities shall be regulated by agreement between the two governments. Treaty between France and Grand Duchy of Meck- lenburg - Schwerin — (extended to the) Grand Duchy of Mecklenburg- Strelitz, Netherlands, July 7, 1865, " XXIII., 9 7d, 337. The regulations governing. the execution of the provision for the ad- mission of samples free of duty, and for the annual license of commer- cial travellers, under the treaty between Prance and Austria, are con- tained in the protocol of .Dec. 11, 1866, (9 De Glercq, 663.) As to the identification of samples, see also protocol to treaty between France and the Grand Duchy of Mecklenburg-Schwerin, (9 De Gl&rcq, 308.) June 9, 1865, Art. XX., 9 De Glercq, 395. INTERNATIONAL CODE. 239 TITLE XIII. QUARANTINE. Abticle 417. Quarantine. 418. For what diseases quarantine may be imposed. 419. Detention of ships. 420. Ships may put to sea, when. 421. Limit of quarantine. 422. Regulations. A summary of the laws and regulations of different countries pn quar- antine will be found in a paper by Dr. Milroy, in the Transactions of thi British National Association for the Promotion of Social Soien-oe, 1862, p. 872. Another paper by the same author is found in Id., Tol. for 1859, p. 521 ; Several conventions on this subject are to be found in 6 Be Glercq, 141. 6 Id., 179 ; 9 Id.,' 43 ; 9 Id., 383. See, also, an account of the Quarantine Conference of Paris, in Trans- actions of Nat. Asso. for Promotion of Social Science, vol. for 1859, p. 605. Quarantine. IkYl. Eacli nation, for the protection of the public health, may impose, in any ports of its territory, quar- antine upon all ships, public or priv^ate, arriving from other ports, and the persons and property on board, and may impose, on any part of its land frontiers, quar- antine upon any person or property about to enter, subject to the following articles of this Title. For what diseases quarantine may he imposed. 418. Quarantine may be imposed for any of the fol- lowing diseases, and no other, via. : yellow fever, cholera, typhus or ship fever, small-pox, and any new disease, not now known, of a contagious, infectious, or pestilential nature. Detention of sTiips. 419. Ships arriving in a foul and unwholesome con- dition, even though provided with clean bills of health, and though no case of disease has occurred during the 240 OTJTLIlirES OP AN voyage, may be subjected to quarantine detention and /purification. Ships may put to sea, when. 420. Any ship, before breaking bulk, may put to sea, in preference to being subjected to quarantine. Limit of quarantine. 421. Quarantine shall in no case exceed thirty days. Hegulations. 422. Subject to the foregoing articles of this Title, each nation may make and enforce such quaranttae ■ regulations as it may see fit. IKTEENATIONAL CODE. 241 TITLE XIV. RAILWAYS. Abticle 423. Line between frontier stations an international route. 434. Equal facilities to members of any nation. 425. Freedom of traffic. 426. Revenue service. 427. Offenders against either nation not to be employed by the other. 438. Goods carried in passenger trains. 429. Transit of merchandise through intermediate nation. Line between frontier stations an international route. 423. Except where otherwise provided by special compact, the portion of a railway lying between the frontier stations of two nations which the railway con- nects is an International route. In all that concerns the surveillance of the road, the administrative control of each nation extends over the line proceeding from it to the frontier station of the other nation. But the jurisdiction of the tribunals is not thereby extended, beyond the frontier. Suggested by the provisions of the convention for the international railway service between France and Spain, April 8, 1864, Art. I., 9 De Clercq, 13. Equal facilities to memters of any nation. 4z^. No distinction shall be made between the mem- bers of different nations in the price, time, or facilities of transportation ; and transportation within one ter- ritory towards the other shall not be less favorably treated ia those respects than that which is wholly internal. 16 242 OUTLINES OP AN- Convention for the establishment of an international railway between France and Belgium, Jan. 15, 1866, Art. VIII., 9 Be Oleri-q, 473, 475. Prussia, July 18, 1867, " VIII., 9 Id., 736, 738. ^ Luxembu^^ °* [ June 10, 1857, " II., 7 Id., 274, 277. Bavaria, ' Feb. 4, 1848, " X., 5 Id., 576. The last clause of the Article is also contained in the convention be- tween France and Belgium, Sept. 20, 1860, Art. XI., 8 BeOlercq, 118, — (respecting the railways of the Ardennes and Namur.) Belgium, Sept. 20, 1860, Art. XI., 9, Id., 133, • — (respecting the railways of the Ardennes and of Luxemburg.) Freedom of traffic. 425. Subject to the following articles, trains, whether with goods or passengers, may crpss the boundary at any time of the day or night, and without exception of holidays. Convention concerning international railway service between France and Spain, April 8, 1864, Arts. II., IX., 9 Be Clercq, 13, 14. Detailed provisions respecting the revenue service are found in Arts. rV., VI.-VIII., X., XI., of the convention between France and Spain, above, and in the convention between France and Bavaria, July 3, 1857, Arts. XII-XV., 7 Be Olercq, 339. Sardinia, Nov. 23, 1858, 7 Id., 532. Also in the regulation of the international railway service between France and Sardinia, Nov, 15, 1858, 7 Be Olercq, 539. %&iTn'd:'^ }^- 14.1853, 6J« Olercq, 13. ' Convention between France and Bavaria, July 3, 1857^ Art. VI., 7 De Olercq, 399, 801. ' Convention between France and * Spain, April 8, 1864, Art. XIX., 9 De Olercq, 13, 16. Regulation of the international service of railways between France and Sardinia, Nov. 15, 1858, Art. XVIII., 7 De Olercq, 539, 581. ^ pfiTsTia^"^ [ 1848, " XXIV., 5i(Z.,618. ' Convention between France and Spain, April 8, 1864, Art. XVIII., 9 De Olercq, 13, 15. Bavaria, July 3, 1857, " XXX., 7 Id., 399, 304. The latter adds ; " sons peine d'etre tenues de remplir a la frontiere les formalities ordinaires de douane." To the same efEect are the regulations for international railway service between France and ^tlth^^ri^Sds,*''' f Dec. 14, 1853, Art. XIX.. 6 De Ol^c,, 352. ^S™ ''"'^ ^"''' ( 1848, " XIX.,5J(i.,618. ' Convention between France and Bavaria, July 3, 1857, Art. X., 7 De Olercq, 399, 301. Sardinia, Nov. 3, 1858, " XI., 7 Id., 533, 534. Offenders against either nation not to he employed ty the other. 427. A nation is not bound to permit the entry npon or service witMn its territory, under this Title, of an officer or agent who has been convicted in its tribu- nals of any offense whatever. Convention between France and Bavaria, July 3, 1857, Art. VIII., 7 De Olercq, 399, 301, Sardinia, Nov. 33, 1858, " XVI., 7 Id., 533, 534. Goods carried in passenger trains. 428. Passengers are not entitled to take in the car- riages goods, or packages containing goods, subject to duty, or prohibited.' Articles subject to duty, carried in passenger trains, may be subjected to the regulations for goods on freight INTERNATIONAL CODE. 245 trains, except that they must be passed without more than three hours' delay." ' Convention between France and Spain, Apr. 8, 1864', Art. XII., 9 Be Gl&rcq, 13, 15. Bavaria, July 3, 1857, " XXVI., 7 J(i., 299, 301. Regulation of international railway service between Prance and Sardinia, Nov. 15, 1858, Art. IX., 7 Be Olereq, 529. ^ N&iands. *^' f !>-. 14, 1853. " XIIL, 6 M., 252. BeJgumandPrus-l ^g^g^ ., xm. , 5 ic?. , 618. * Convention between Prance and Spain, April 8, 1864. Art. XIII., 9 Be Olereq, 13, 15. To similar effect, without the last clause, convention between Prance and Bavaria, July 3, 1857, Art. XXVII., 7 De Ciercq, 303. Sardinia, Nov. 15, 1858, " X., 7 Id., 529. ^ N&ands. '^^ \ ^-- 14' 1«52, ■. XIV., 6 U., 353. Bej^mm and Prus- J ^g^g^ ., ^j^^ g ^^ _ g^g Transit of merchandise through intermediate na- tion. 429. Wagons, cars, or packages of merchandise, sealed by the revenue officers of one nation for inter- national railway transportation, and passing through the territory of another nation, in course of such trans- portation, into the territory of a third nation, shall be treated as having been directly imported, if the seals and enclosures remain unbroken upon entering the lat- ter, and if the transportation has been conformable to the regulations of the service. The casual breaking of the enclosures during transportation shall not aflfect the application of this article, if the cause, and the acts done in consequence thereof, be certified by the local authorities, and a new seal be imposed by them. Treaty between Prance and Switzerland, June 30, 1864, Art. V., 9 Be Glereq, 49. Similar provisions in treaty between France and Netherlands, Art. X.,d Be Olereq, 337. Portugal, July 11, 1866, " XXIV., 9 id, 558, — require the wagons or packages to be " plombes," and do not contain the clause relative to compliance with the conditions of the international service. 246 OTTTLIKES OF AN TITLE XV. TELEGRAPHS. ASTICLE 430. Free communication allowed. 431. Right of corresponding. 432. Classification of dispatches. 438. Dispatches of State. 434. Authentication of dispatches of State. 435. Authentication of private dispatches, 436. Language of dispatches. 437. Dispatches in cypher. 438, 438. Preference of dispatches. 440. Designation of route. 441. Government scrutiny relinquished. 442. Illegal dispatches. 443. Suspension of service. 444. Sending false dispatches ; violating dispatches, &c. 445. Regulations. In November, 1869, the Secretary of State of the United States, by direction of the President, addressed a circular to the principal mari- time powers, inviting a conference to form a joint convention for the pro- tection of Submarine cables. The objects proposed were : 1, to make willful or wanton destruction of them punishable as piracy ; 2, to encourage future constructions, by forbidding exclusive concessions, except on consent of both nations con- cerned ; 3, to forbid government scrutiny at either end of a line. The provisions of the Draft Convention proposed are embodied in sub- stance, in the following Articles, with some modifications, suggested by the European Internaiional Convention at Vienna, July 21, 1868. The crime of injuring telegraphs is provided for by Article 83, and their immunity in war, by provisions in the Book on WAR. Free communication allowed. 430. Any person may land a submarine telegraphic cable on the shores of any nation, and work the same, subject to the provisions of this Title, and the regulations made by such nation relative thereto, and subject to the rights and obligations attaching to private property. The united consent of the several parties to the Code, must, of course, be obtained before any legislation interfering with this right. INTERNATIONAL CODE. 247 The American Draft Convention, Arts. I. and 11., proposes to recognize the principle that no exclusive concession for an international telegraphic line shall be made or renewed by any nation, vpithout the consent of the nation vrith whose territory the concession contemplates a connection ; and that no telegraphic line shall be laid immediately connecting the territories of different nations, without the consent of each nation. But it seems reasonable that all restrictions in tliis regard should be re- moved, and that the right of any persons having riparian access, to com- municate through the sea, should be declared. Right of corresponding. 431. AH persons, without discrimination, have the right to correspond by international telegraphs. Convention of Vienna, 1868, Art. I. Classification of dispatches. 432. Telegraphic dispatches are of three classes : 1. Dispatches of State ; 2. Dispatches relating to the telegraphic or postal service of the nations uniting in this Code ; 3. Private dispatches. Convention of Vienna, 1868, Art. IV. Dispatches of State. 433. Dispatches of State include those that issue from the chief executive office of a nation, from the ministers, from commanders of military or naval forces, from public agents mentioned in article 91, and mes- sages in extradition ; and also, the replies to such dis- patches, except that dispatches of consuls and com- missioners who are engaged in commerce, are not considered dispatches of State, unless addressed to an official person, and upon official business. Convention of Vienna, 1868, Art. IV,, modified by adding "messages in extradition." It should seem necessary to include dispatches relating to the postal ser- vice in the second class, mentioned in Article 433, as the postal service is hardly less important than the telegraphic. Authentication of dispatches of State. 434. Dispatches of State will be received as such only when bearing the seal, 'or other evidence of the authority of the sender. Convention of Vienna, 1868, Art. V. 248 OUTLINES OF AN Authentication of private dispatches. 435. The sender of a private dispatch may be re- quired to prove its signature. Convention of Vienna, 1868, Art. VI. Language of dispatches. 436. A dispatch may be written by the sender in the language of any of the nations, parties to this Code, or in any language that can be transmitted by telegraph. The Convention of Vienna, (Art. VII,,) allows any of the languages used in the territories of the contracting States, and also Latin. Dispatches in cypher'. 437. Dispatches of State and of the telegraphic ser- vice may be written and transmitted in cypher, or secret, letters, in whole or in part. Private dispatches may be so written and transmit- ted, subject to the power of any nation to prohibit such dispatches from originating or being delivered withia its territory. Convention of Vienna, 1868, Arts. VIII., IX. Preference of dispatches. 438. Subject to the next article, the transmission ot dispatches shall be made in the following order : 1. Dispatches of State ; 2. Dispatches on telegraphic service ; 3. Private dispatches. Telegraphic Convention of Vienna, 1868, Art. X. The sarrte. 439. A dispatch commenced cannot be interrupted,, to give place to a communication of superior class, un- less in case of absolute necessity. Dispatches of the same class and with the same des- tination must be transmitted by the original sending ■ station, in the order of their deposits by the senders, and by the intermediate officers in the order of their- reception. Convention of Vienna, 1868, Art. XII. By a convention between Prance and Great Britain, Feb. 1, 1855, for a. telegraph from Bucharest to Varna, it was provided that for messages- INTEENATIONAL CODE. 24if arriving simultaneously, the rule of the alteruat should be followed. 6 Be Olercq, 493. It has been proposed to allow the companies to depart from the pro- visions of this Article, in the interest of their service, on lines connecting several places separated by considerable difference of time in longitude. Designation of route. 440. The sender of a message may designate its route, subject to the power of the telegraphic adminis- tration to depart therefrom, if required by the exigen- cies of the service, or by the instructions of the nation whose territory is traversed. Convention of Vienna, 1868, Art. XII. Government scrutiny relinquished. 441 . The proprietors o f international telegraphic lines may receive, transmit, and deliver messages, without interference or scrutiny by the government of either nation, except as provided in the next two articles. American Draft of Convention, Art. III. Illegal dispatches. 442. A nation may authorize and require the tele- frraphic administration within its territory to stop the transmission of any dispatch of either class which ap- pears to be dangerous to the security of such nation, or is contrary to its laws, to public order, or to good morals, under the obligation to give immediate notice, in the case of a dispatch of the second or third class, to the administration from whose bureau the dispatch originated ; and in the case of a dispatch of the first class, to both parties to the correspondence. Telegraphic Convention of Vienna, 1868, Art. XIII., modified by includ- ing public dispatches, and requiring notice to the parties. Suspension of service. 443. A nation may suspend the service, within its territory, of all or any of the international telegraphic lines connecting therewith, for any time limited or un- limited, either by a general suspension, or for special kinds of correspondence, under the obligation to no- tify the suspension immediately to all the other nations uniting in this Code. Convention of Vienna, 1868, Art. XIV. 250 OtTTLINES OF AN" Sending false dispatches. ; molating dispatches, &c. 444. The following, when aflfeoting the international, telegraphic service, are public offenses : 1. Willfully originating, an4 tendering, or causing to be sent, false messages ; 2. Unlawfully hindering or delaying, by any act or omission, the transmission or delivery of a dispatch ; and, B. Violating the secrecy of a dispatch, except dis- closing illegal dispatches, in the cases and to the extent necessary in the enforement of article 442, and know- ingly republishing, without authority, any dispatch the secrecy of which has been so violated. This Article is intended to protect against wrongs whicli have not been adequately provided for. Regulations. 445. Each nation shall make regulations to assure secrecy, accuracy, and rapidity in the transmission of dispatches, and communicate the same to each of the other nations, but is not otherwise responsible for the telegraphic service. Convention of Vienna, 1868, Arts. IT., III., adding " accuracy," and also adding the clause requiring communication of the regulations. _ INTERNATIONAL CODE. 251 TITLE XVI. POSTAL SERVICE. Chapter XXXVI. Correspondence. XXXVII. Postal Monet Ordebb. CHAPTER XXXVI. CORRESPONDENCE. Abticle 446. Exchange of correspondence. 447. Classes of correspondence. 448. Rates of postage on letters. 449. Rates on other postal packets. 450. Registered correspondence. 451. Prepayment required. 453. Interior postage. 453. Certain official correspondence free. 454. . Accounts. 455. Right of transit. 456. Relations with other countries. 457. Domestic regulations. 458. Internal regulations. 459. Central office. i 460. Arbitration in case of disagreement. 461. Conference every three years. 462. Entry and departure of mail ships. 463. Private mails forbidden. 464. Dangerous substances. 465. Transit of closed mails. 466. Mail matter not to be detained. 467. Letters with contraband goods. 468. Violations of the mails. 252 OUTLINES OF AN Since the first edition of this work, a general postal treaty has been- entered into between the United States, Germany, Auatro-Hungary, Belgium, Denmark, Egypt, Spain, France, Great Britain, Greece, Italy,. Luxemburg, Sweden and Norway, Holland, Portugal, Russia, Roumania,. Servia, Switzerland and Turkey. The first article of the treaty is as follows : " The countries between which the present treaty is concluded, shalll form, under the title of ' General Postal Union,' a single postal territory for the reciprocal exchange of correspondence between their post ofllces." In place, therefore, of repeating here the articles of the first edition,, with references to the various treaties then existing, the following articles of this chapter, excepting the last seven, are introduced, and are- intended to be conformable in substance to the permanent provisions of the new treaty. Exchange of correspo7idence. 446. There shall be an exchange of correspondence between the nations, by their respective post depart- ments ; which may include correspondence originating in or destined for any country whatever to which any of the nations serve as intermediaries. The post department of each nation shall notify to- that of every other nation the countries to which it serves as intermediary. Glasses of correspondence. 447. Subject to the provisions of this Chapter, such correspondence may include any matter of the follow- ing classes : 1. Letters, ordinary and registered : 2. Postal cards ; newspapers ; books, bound or stitched ; prints of all kinds, comprising maps, plans, engravings, drawings, photographs, lithographs, and all other like productions of mechanical processes; legal or commercial documents ; pamphlets ; visiting cards ; notices" and papers of every kind, whether printed, engraved, lithographed or autographed ; sheets of music ; patterns or samples of merchandise, includ- ing grains and seeds, not having a commercial value. Bates of postage on letters. 448. The rate of postage on letters is twenty-five cen- times for a single prepaid letter. A letter which does not INTERlfATIONAL CODE. 253 •exceed fifteen grammes in weiglit is considered a sin- gle letter. The charge upon letters exceeding that weight is a single rate for every fifteen grammes or fraction of fifteen grammes. The charge on unpaid letters is double that levied in the country of destination on prepaid letters. Postal cards must be prepaid. The postage upon them is one-half of that on paid letters, with power to raise the fractions to units. For all conveyance by sea of more than three hun- dred nautical miles, there may be added to the ordi- nary postage an additional charge, not to exceed the half of the general rate for a paid letter. Rates on other postal packets. 449. The charge for the transmission of any other postal packet, that is, of any of the matters enumer- ated in Article 447, other than letters, is seven centimes for each single packet. ■A packet which does not exceed fifty grammes in weight, is considered a single one. The charge upon packets exceeding that weight is a single rate for every fifty grammes or fraction of fifty grammes. For all conveyance by sea of more than three hun- dred nautical miles, there may be added to the ordi- nary postage an additional charge, not exceeding the half of the general rate fixed for packets of this class. The maximum weight of the packets is two hundred a,nd fifty grammes for patterns of merchandise, and one thousand grammes for the others. The Government of any country may refuse to con- vey over its territory or to deliver packets specified in this Article, with regard to which the laws and regula- tions which determine the conditions of their publica- tion and circulation have not been observed. Registered correspondence. 450, The letters and packets specified in Article 447 may be registered. Every registered packet must be pre- paid. The postage payable on registered letters and 2.'54 OUTLINES OF- AN packets, is the same as that on those not registered. The charge to be made for registration and for return re- ceipts must not exceed that made in the interior service of thQ country of origin. In case of the loss of a registered letter or packet, except from overruling necessity, there shall be paid an indemnity of fifty francs to the sender, or, at his re- quest, to the person addressed, by the office of the country in the territory or in the maritime service of which the loss has occurred, — 'that is to say, where the trace of the article has been lost, — unless, according to the legislation of such country, the office is not respon- ' sible for the loss of registered matter sent through its interior post. The payment of this indemnity shall be made with the least possible delay, and, at the latest, within a year from the time of application. And all claim for indemnity is excluded if it be not made within a year from the time when the registered letter or packet was posted. Prepayment required. 451. Prepayment of postage can be made only by means of postage-stamps, or stamped envelopes valid in the country of origin. Newspapers and other printed papers unpaid or insufficiently paid shall not be forwarded. Other matter when unpaid or insufficiently paid shall be charged as unpaid letters, after deducting the value of the stamped envelopes or postage-stamps (if any) employed. Interior postage. 452. No additional postage shall be charged for the re-transmission of letters or packets within the interior of a country. But in case a letter or packet which has only passed through one of . the countries should, by being re-directed, have to pass through another, the post office. of the country of destination may add its interior rate. INTERNATIONAL CODE. 256 Certain official correspondence free. 453. Official correspondence relative tO the postal service is exempt from postage. With this exception, no franking or reduction of postage is allowed. Accounts. 454. Each office shall keep the whole of the sums which it collects by virtue of the foregoing Articles 448, 449, 450, 451, and 452. Therefore no accounts in respect to those need be kept between the several offices of the service. Neither the senders nor the receivers of letters and other packets shall be called upon to pay, either in the country of origin or in that of destination, any tax or duty other than those prescribed in this chapter. Right of transit. 455. The right of postal transit is guaranteed throughout the entire territory of the parties hereto. There shall be fall liberty of exchange, the several post offices of the service having the right to send reciprocally, in transit through intermediate countries, closed mails, as well as correspondence in open mails, according to the wants of the traffic and the exigences of the service. Closed mails and correspondence sent in open mails must always be forwarded by the most rapid routes at the command of the post offices concerned. When several routes offer the same advantages of speed, the despatching office may choose the route to be adopted. Closed mails must be made up whenever the number of letters and packets would otherwise, in the judgment of those in charge of the transit office, hinder its oper- ations. The despatching office shall pay to the office pro- viding the transit the sum of two fra,ncs per kilo- gramme for letters, and twenty-five centimes per kilo- gramme for the several packets specified in Article 449, net weight, whether the transit takes place in 256 ■ OtTTLINES OF AK closed mails or in open mails. This payment may be increased to four francs for letters, and to fifty cen- times for the packets specified in Article 449, when a transit is provided of more than seven hundred and fifty kilometres in length over the district of one •ofiice. It is understood, however, that in any case in which the transit is already actually gratuitous or subject to lower rates, those conditions shall be main- tained. Whenever a transit shall take place by sea over a •distance exceeding three hundred nautical miles, the office, by or at the expense of which this sea-service is performed, shall have the right to payment of the ex- penses attending the transport. The expense shall be reduced as much as possible. The payment which the ofiice providing the sea conveyance may claim on this Account from the despatching office shall not exceed six francs fifty centimes per kilogramme for letters, And fifty centimes per kilogramme for the packets spec- ified in Article 449, (net weight.) In no case shall these expenses be higher than those now paid, and no pay- ment shall be made upon the sea routes on which nothing is paid at the present time. In order to ascertain the weight of the correspond- ence forwarded in transit, whether in closed mails or in open mails, there shall be taken, at periods which shall be determined upon by common consent, an ac- count of such correspondence during two weeks. Until revised, the result of that account shall serve as the basis of the accounts of the post offices between themselves. Each office may demand a revision : 1. In case of any important modification in the di- rection of the correspondence ; 2. At the expiration of a year after the date of the last account. The provisions of the present article are not applica- ble to the Indian mail, nor to the mails conveyed across the territory of the United States of America by the INTERNATIONAL CODE. 257 railways between New York and San Francisco. Those services shall continue to form the object of special ar- rangements between the post oflfices concerned, subject to articles 465 and 466. Relations with other countries. 456. The relations of the nations parties hereto with other nations on the subject of this Chapter shall be regulated by the separate conventions which now exist or which may be concluded between them. The rates of postage chargeable for the conveyance bej^ond the jurisdiction of the nations parties hereto shall be determined by those conventions, and they shall be added in such case to the rates prescribed in this chapter. In conformity with the stipulations of Article 454, the rate shall be apportioned in the following manner : 1. The despatching office shall keep the whole of the rate for the prepaid correspondence addressed to for- eign countries ; 2. The receiving office shall keep the whole of the rate for the unpaid correspondence originating in for- eign countries ; 3. The office which exchanges closed mails with foreign countries shall keep the whole of the rate for the paid correspondence originating in foreign coun- tries, and for the unpaid correspondence addressed to foreign countries. In the cases mentioned in subdivisions 1, 2, and 3, of this article, the office which exchanges the mails is not entitled to any payment for transit. In all the other cases the transit rates shall be paid according to the stipulations of Article 455. Domestic regulations. 457. The post offices of the various countries may establish for themselves regulations, in respect to the order and detail necessary to the execution of this chapter. But it is understood that these regulations 17 258 OUTLINES OF AN" may always be modified by tlie common consent of the oflBces of the general service. The several offices may make amongst themselves arrangements on subjects which do not concern the service generally ; such as the regulations of exchange at the frontier, and the determination of limited circles in adjacent countries within which a lower rate of postage may be taken. Internal regulations. 458. The provisions of this chapter shall not involve any alteration in the interior postal legislation of any nation, or any restriction on its right to maintain and to conclude treaties, as well as to maintain and estab- lish more restricted postal unions, with a view to a progressive improvement of postal relations. Central office. 459. There shall be organized, under the name of the international oifice of the general postal service, a central office, which shall be conducted under the super- vision of a postal administration to be chosen by the conference of delegates hereinafter mentioned, and the expenses thereof shall be borne by all the offices of the general service. The general office shall be charged with the duty of collecting, publishing, and distribut- ing information of every kind which concerns the in- ternational postal service ; of giving, at the request of the parties concerned, opinions upon questions in dispute ; of makiag known proposals for modifying the detailed regulations ; of notifying alterations adopted ; of facilitating operations relating to international ac- counts, especially in the. cases referred to in Article 455, and in general of considering all questions in the inter- terest of the postal service. Arhitration in case of disagreement. 460. In case of disagreement between two or more parties, as to the interpretation of this chapter, the question in dispute shall be decided by arbitration. INTMRNATIOKAL CODE. 259 To that end, each of the parties concerned shall choose another party, not interested in the disagreement. The decision of the arbitrators shall be given by an abso- lute majority of votes. In case of an equality of votes the arbitrators shall choose some other party as um- pire. Conference every three years. 461. Every three years at least, a conference of dele- gates from the nations parties hereto shall be held, with a vievsr of perfecting the postal service, and discussing matters of common concern. In this conference each nation shall have one vote, and each may be represented either by one or several delegates, or by the delegation of another nation, but no delegate can repres.ent more than two nations at a time. Free entry and departure of mail s7dps. 462. Subject to the sanitary, police, and customs regulations of the port, mail ships may enter and leave the ports which they serve, at any hour of the day or night, and may leave and take mails in the roads or at the entrance of the harbors, without anchoring, or otherwise. Private mails forbidden. 463. Sending or carrying mail matter for hire from one nation to another, except for the post department of a nation, is a public offense, unless payment of postage to that department be first made ; and the government of any nation may require mail matter carried either gratuitously or for hire to be surren- dered to its post department. Dangerous substances. 464. No person shall post anything containing ex- plosive or other dangerous substances. Transit of closed mails through each nation. 465. The post department of each nation shall grant to the post department of every other nation the tran- sit through its territory, and conveyance by its usual 260 OUTLINES OF AST means of mail transportation, whether by land or sea, and at the usual cost of transportation, of the closed mails exchanged in either direction between the latter and any country to which the former may serve as iij- termediary. But the transfer of a closed mail from one ship to another, without expense to the post depart- ment of the place, is not to be deemed a territorial transit, nor subject to postal charges by such depart- ment. Mail matter not to he detained 466. . Subject to the next article, all correspondence posted in one country for another, or received in one country from another, is free from all detention or in- spection, and shall be forwarded by the most speedjr means to its destination, or promptly delivered to its address, as the case may be ; being subject, in its transmission, to the laws and regulations of each country respectively. Letters with contraband goods. 467. Any correspondence suspected to contain con- traband goods, may be opened and examined in presence of the party to whom it is addressed ; and if, on such examination, contraband goods are discovered, the let- ter and its contents may be detained. Violations of tTie mails. 468. The unlawful hinderance of the international postal service, or interference with, or appropriation of any correspondence entrusted thereto, or violation of the secrecy of such correspondence, is a public offense. The following regulations accompanied tte treaty : Dbtailbd Eegtjlations for tte execution of the Treaty concerning the formation of a General Postal Union, concluded at Berne, the 9th October, 1874. I. Rates of Postage within tTieUnion. — The Post Offices composing tbe Union shall communicate reciprocally the rates of postage which they shall have adopted in conformity with Articles 3, 4, and 5 of the Treaty, for paid and unpaid letters, and for the other paid articles originatine in INTEEKATIONAL CODE. 261 and addressed to the Union, as well as the transit rates applicable to tlit land and sea services within the Union, by virtue of paragraphs 6, 7, 9, and 10 of Article 10 of the Treaty. Every modification adopted hereaftei in the amount of those rates shall be notified without delay. II. Exchange m Closed Mails. — The exchange of correspondence in closed mails between the Post Offices of the Union shall be regulated \ij common consent and according to the necessities of the service between the Post Offices concerned. If an exchange of mails should take plact through the medium of one. or of several other countries, due notice shal' be given to the Post Offices of those countries. III. Application of the Stamps. — 1. The correspondence to be recip rocally exchanged shall be impressed, on the upper part of the address with a stamp indicating the place of origin and the date of posting. 2. Unpaid or insufficiently paid correspondence shall, in addition, b« impressed with the stamp " T " (tax to be paid), the application of whicl shall devolve upon the office of the country of origin. 3. Registered articles shall bear the impression of the special stamf used for articles of a like nature in the country where they originate. 4. The several Post Offices shall forward to each other, through thf medium of the International Office, an impression of the stamp last men tioned. 5. Every postal packet which does not bear the stamp " T " shall be considered as paid to destination and treated accordingly, unless theie be an obvious error. IV. Indication of the Number of Rates. — 1. When a letter or other postal packet shall be liable, by reason of its weight, to more than a single rate of postage, the dispatching office shall indicate in the upper left-hand corner of the address, in ordinary figures, the number of rates paid, or to be paid. 8. This regulation shall not be obligatory in the case of correspond- ence fully prepaid addressed to a country of the Union. V. Insufficient Prepayment. — 1. When an article shall be' insufficiently prepaid by means of postage stamps, the dispatching office shall indicate in figures, in black ink, placed by the side of the postage stamps, their total value. That value shall be expressed in francs and centimes. 3. In case postage stamps may be used which are not of any value in the country of origin, no account shall be taken of them. This fact shall be indicated by the figure "0" placed by the side of the postage stamps. 3. The office of the country of destination shall charge the insuffi- ciently paid articles with the amount of the deficient postage, calculated at the rate of an unpaid letter of the same weight. In case of need, fractions may be raised to the monetary unit of charge in force in the country of destination. 262 OUTLINES OF AN VI. Letter Bills. — 1. The letter bills for the direct exchanges between two Post OfiSces shall be in conformity with the specimen A. appended to the present regulations. 2. No mention shall be made in the letter bill of the correspondence of any kind, whether paid, unpaid, or insufficiently paid, originating in one country of the Union and addressed to another of those countries, nor of the paid correspondence from foreign countries addressed to the Union, or of the unpaid correspondence from the Union addressed to foreign countries. 3. As regards other correspondence, there shall be entered, — 1st. Under table I., the total amount of the foreign postages due on the unpaid correspondence, and the amount of the claims on the correspondence retransmitted, for which credit will have to be given to the dispatching Office. 2nd. Under table II., the total amount of the postages, and, when necessary, the foreign fees for registration, upon the paid corre- spondence, which will have to be credited to the Office of des- tination, or to the furthest Office of the Union. 4. The postages or claims to be entered in table I. shall be indicated upon each article, in blue ink, at the lower left-hand corner of the ad- dress. 5. The postage and fees to be brought to account under table II. shall be indicated in each article, in red ink, at the lower left-hand corner of the address. 6. In table III. shall be entered, with such details as this table re- quires, the closed mails in transit which accompany the direct mails. 7. The registered correspondence shall be entered in table No. IV. of the letter bill, with the following details ; the name of the office of origin, the name of the addressee and the place of destination, or simply tlie name of the office of origin and the number given to the article at that office ; the amount of the postage and the foreign registration fees to be credited, when necessary, to the Office of destination or the furthest Office of the Union. 8. When the number of registered articles usually sent from one office of exchange to another shall require it, a special and separate list shall be used to take the place of table No. IV. of the letter bill. 9. The amount of postages, credits, and debits shall be expressed in friinos and centimes. 10. If, in order to facilitate operations of account, it should be deemed necessary in certain cases to adopt new articles under tables I. and II.. of the letter bill, the necessary steps may be taken after an understanding between the Post Offices concerned. In such case, the forms of accounts shall be made to correspond with the wording of the letter bills. VII. Despatch of registered Correspondence. — 1. The registered corre- spondence shall be enclosed in a separate packet, which must be suitably made up and sealed so as to preserve its contents. INTERNATIONAL CODE. 263 3. This packet, witli the letter bill round it, shall he placed in the centre of the mail. VIII. MaMng up the Mails. — 1. Every inail exchanged between otBces of the Union, after having been first tied with string, must be enclosed in strong paper of sufficient quantity to prevent damage to the contents, then tied again with string on the outside, and sealed with wax or fas- tened by means of a gummed paper label bearing an impression of the seal of the office. The mail must be furnished with a printed address bearing in small characters the name of the dispatching office, and in larger characters the name of tlie office to which it is to be forwarded : "From ..." "For . . . ." 2. If the size of the mail should require it, it must be enclosed in a bag properly closed and sealed. 3. The bags must be returned to the despatching office by the next mail. IX. Verification of the Mails. — 1. The exchanging office which shall receive a mail shall, in the first place, ascertain whether the entries in the letter bill (debits, credits, closed mails in transit, registered articles) are correct. 3. If it discovers errors or omissions, it shall immediately make the necessary corrections on the letter bills or lists, taking care to strike out the erroneous entries with a pen, in such a manner as to let the original entries be seen. 3. These corrections shall be made by two officers. Bx'cept in the case of an obvious error, they shall be accepted in preference to the orig- inal statement. 4. A note of verification, in conformity with the specimen B. hereto annexed, shall be prepared by the receiving office, and sent without delay, officially registered, to the despatching office. 5. The latter, after examination, shall return it with any observation to which it may give rise. 6. In case of the failure of a mail, of a registered article, or of a letter bill, the circumstance shall be immediately recorded in the nianner agreed upon by two officers of the receiving office, and reported to the despatching office by means of the note of verification ; and, if needful, the latter shall also be advised thereof by telegram. 7. In case the receiving office shall not have forwarded by the first mail to the despatching office a note of verification, reporting errors or irregularities of any kind, the absence of that document shall be regard- ed as evidence of the due receipt of the mail and of its contents, until proof to the contrary. X. Registered Articles. — Conditions as to Form and Manner of Fasten- ing. — No stipulation is insisted upon as to the form ormanner of fasten- ing of registered articles'. Bach Office shall have the right to apply to such description of correspondence the regulations in force in its interior service. 264 OTTTLINES OF AN XI. Newspapers and Printed Papers.— Conditions as to Form.—l. In order to enjoy the reduced postage extended to them by Article 4 of the- Treaty, books, newspapers, printed papers and other similar articles must be placed under band, or in an 'envelope, open, or simply folded so as to. admit of their being easily examined ; and, except in the following par- ticulars, they must contain no MS. writing, figure, or mark whatever. 2. Proofs of printing or of music may bear corrections, made with a pen, relating exclusively to the text or to the execution of the work. It shall be allowable to annex the manuscripts to them. 3. Circulars, notices, &c., may bear the signature of the sender, with his trade or profession, and may also indicate the place of origin and the date. 4. Books shall be admitted with a manuscript dedication or a compli- mentary inscription from the author. 5. It shall be permitted to mark with a simple stroke the passages in the text to which it is desired to call attention. 6. Printed, lithographed, or autographed stock and share lists, price* current, and market reports shall be admitted with the prices added in writing or by means of any impression whatever. 7. There shall not be admitted any other MS. additions, nor even, those produced by means of typographical characters, if the latter tend to take from the packet its general character. 8. Such of the above-mentioned articles as shall not fulfil the forego- ing conditions shall be considered as unpaid letters and charged accord- ingly, with the sole exception of newspapers and printed papers, such as- circulars, notices, &c., which shall not be forwarded in such cases. XII. Patterns of Merchandise. — Conditions of Form. — 1. Patterns of merchandise shall only be admitted to the benefit of the reduced postage which is extended to them by Article 4 of the Treaty under the following conditions : 3. They must be placed in bags, or in boxes, or envelopes removable so as to admit of an easy examination. y. They must not have any salable value, nor bear any MS. writing other than the name or the trade or profession of the sender, the address- of the person for whom the packet is intended, a manufacturer's or trade- mark, numbers and prices. 4. It is forbidden to introduce these articles into a letter, or into a packet of any other kind, save in the case in which they form an integral, part of a particular work. 5. Patterns which are not in accordance with the requisite conditions shall be charged as letters, except those which are valuable. The latter shall not be forwarded, nor those the conveyance of which would be at- tended with risk or danger. XIII. Legal and Commercial Documents. — I. The following articles- shall be considered as legal and commercial documents, and admitted as such to the reduced postage conferred by Art. 4 of the Treaty; acts or deeds of all kinds drawn up by public functionaries, invoices the various INTEENATIONAL CODE. 264a documents on the service of insurance companies, copies or extracts of deeds under private seal -written upon stamped or unstamped paper, scores or sheets of MS. music, and in general all MS. papers and docu- ments which have not the character of an actual and personal correspond- ence. 3. Commercial and legal documents must be sent under a movable band, and made up so as to admit of their being easily examined. 3. Packets which do not fulfil the conditions above enumerated shall be considered as unpaid letters and charged accordingly. XIV. Correspondence with Foreign Countries. — 1. The Offices of tha Union which have regular relations established with countries situated beyond the Union shall admit all the other Offices to take advantage of those relations for the exchange of their correspondence, on payment of the charges due for the conveyance beyond the limits of the Union. 2. They shall, consequently, furnish the Offices interested, with aj table similar to the specimen C. appended to the present Regulations,- which shall indicate the conditions as to payment under which may be exchanged the correspondence to be sent or received by the said routes. 3. Due notice shall be given of any alterations introduced into those conditions. XV. Misdirected Correspondence. — Missent articles of all kinds shall be re-forwarded without delay to their destination by the most direct route, subject, where the case occurs, to a charge or claim of the amounts for which they may have been originally brought to account. XVI. Undelivered Correspondence.— 1. The correspondence which shall not be delivered, from whatever cause, shall be returned imme- diately through the respective offices of exchange. 3. Returned letters shall be tied up separately, and inscribed with a label bearing the words "Returned letters." 3. Those articles which shall have been paid shall be returned with- out any claim. 4. Unpaid or insufficiently paid letters shall, in like manner, be re- turned without claim, in so far as they may have originated in a country of the Union. 5. Those which niay have been charged with foreign rates shall be • entered to the credit of the Office which returns them. (Table No. I, of the Letter Bill.) XVII. Accounts.— 'i. Each Office shall prepare monthly, for each mail received, a statement similar to the specimen D. appended to the present Regulations, comprising the correspondence brought to account on the letter bills received. 3. Those statements shall afterwards be incorporated in an account similar to the specimen E. 3. The account, accompanied by the statements and the letter bills (from which table IV. shall be detached), shall be submitted to the ex- 264& OUTLINES OF AN aBaination of the corresponding OfBce during the month following that to which it relates. 4. The monthly accounts, after having been mutually examined and accepted, shall be included in a quarterly general account to be prepared by the Office of that oHe of the two countries which shall be placed first in alphabetical order, in the absence of any other arrangement on this point which may be adopted by the Offices interested. 5. These several accounts shall be drawn up in francs and centimes. 6. The balance resulting from the general account shall be paid tc the country to which it is due in francs in cash, by means of, bills drawn upon places to be determined beforehand by mutual consent. XVIII. Periods for Statistics. — 1. The general statistical account to be taken by virtue of § 12, Art. 10 of the Treaty for the purpose of regu- lating the payment of the transit rates, shall be prepared, in the first instance, during seven consecutive days on each occasion, from the 1st August, 1875, and from the Ist December in the same year. It shall serve as a basis, for the payments to be made, up to the 30th June, 1876. 2. The subsequent statistical accounts shall be taken for the periods commencing on the 1st June and 1st December respectively. 3. These statistical operations shall be carried out in conformity with the stipulations of Arts. XIX. to XXIII. following. XIX. Statistics of Transit in Open Manls. — 1. The Office serving as the medium for the transmission of correspondence in transit i% open mails received directly from another Office shall prepare beforehand for «ach separate service a table, according to the form F., in which it shall indicate, distinguishing, if needful, the different routes of transmission, the transit rates to be paid, by weight, to all the intermediate countries, starting from the frontier of exit of the despatching Office up to the frontier of entry of the office of destination. If needful, it shall com- municate in due time with the Offices of the countries to be traversed, as to the route which the correspondence shall take, and as to the rates to be paid upon it. 2. After having prepared this table, the said Office shall forward a copy of it to the despatching office interested, in order to serve as the ' basis of a special account to be established between them with reference to this transit. 3. The despatching office of exchange shall communicate in a table according to the specimen formG., which it shall join to its despatch, the total weight, in two categories, of the correspondence which it shaH deliver in transit to the corresponding office of exchange; and the latter, after verification, shall undertake the further transmission of the corre- spondence to its destination in mixing it with its own, in respect to the payment of the further transit rates. 4. The special account above referred to shall be prepared by the Office which receives the correspondence in transit, and shall be submit- ted to the examination of the despatching office. INTERNATIONAL CODE. 264c XX. Statistics of Transit in Closed Mails. — 1. The correspondence for- warded in closed mails across the territory of one or more other Offices shall form the object of a statement similar to specimen H. The de- spatching office of exchange shall enter in the letter bill for the receiving office of exchange the net weight of the letters, and of the printed papers, &o., without distinction of the origin of the correspondence. These entries shall be verified by the receiving office, which shall prepare, at the end of the period for taking the statistics, the statement above mentioned, in as many copies as there are Offices interested, including tlie Office of the place of final despatch. 2. These statements shall be submitted to the verification of the de- spatching office, and, after having been accepted by it, a copy of the same shall be sent to each of the intermediate Offices. XXI. Transit Accounts. — The table G. and the statement H. shall be incorporated in a special account, by which shall be determined the an- nual amount of transit payable to each Office, in multiplying by 36 the combined totals of the two periods. The duty of preparing this account shall fall upon the Office having to receive payment, subject to any other arrangement to be adopted by common consent. XXII. Transit of Post Cards. — Post cards shall be assimilated to letters in so far as concerns the payment of the transit rates. Those articles must consequently be included in the weight of the letters. XXIII. Exemption from Transit Bates. — The following articles are ex- empt from payment of the costs of territorial transit and sea conveyance ; — Redirected and missent correspondence, undelivered correspondence, post office money orders, documents of accounts, and other documents relating to the postal service. XXIV. Weight of Newspa/pers and Printed Papers. — As an exceptional measure, it is agreed that the States which, in consequence of their in- ternal regulations, are unable to adopt the decimal metrical system of weight, shall have the right to substitute for it the ounce avoirdupois (28.3465 grammes), by assimilating a half-ounce to 15 grammes, and two ounces to 50 grammes, and to raise, if needful, the limit of the single rate of postage of newspapers to four ounces, but under the express con'- dition that, in the latter case, the postage on newspapers be not less than 10 centimes, and that an entire rate of postage be charged for each copy of the newspaper, even though several newspapers be included in the same packet. XXV. Money ; JeweVry. — There shall not be admitted for conveyance by the post, any letter or other packet which may contain either gold or silver money, jewels or precious articles, or any other articles whatever liable to Customs duties. XXVI. Postcards and Letters not admitted to coivoeyance. — Posi cards 2Md OUTLINES OF AK which are not fully prepaid shall not be forwarded. Each Office shall have, moreover, the right not to forward or not to admit in its service post-cards bearing any description of writing which may be forbidden by the statutory or administrative enactments in force in the country. The same shall be the case for letters and other articles which may bear ex- ternally any writing of the character referred to. XXVII. International Office. — 1. The Administration of the Posts of the Swiss Confederation is selected to organize the International OflBce established by Art. 15 of the Treaty. That Office shall commence its functions immediately after the exchange of the ratifications of the Treaty. 3. The ordinary expense of the International Office must not exceed the sum of 75,000 francs annually, exclusive of the special expenses to which the periodical meetings of the Postal Congress may give rise. That sum may be increased ultimately, with the consent of all the con- tracting Offices. 3. The Administration named in par. 1, above, shall superintend the expenses of the International Office, shall make the necessary advances, and shall prepare the annual account, which shall be communicated tO' all the Other Offices. 4. For the division of the expenses, the contracting countries and those which may be hereafter admitted to join the Postal Union shall he divided into six classes, each contributing in the proportion of a certain number of units, viz. : — 1st class ... 35 units. 3nd " . . , . 30 " 3rd " ... 15 " 4th " . . . . 10 " 5th " ... 5 " eth " . . . . 8 " 6. These co-efficients shall be multiplied by the number of countries of each class, and the total of the products thus obtained shall furnish the number of units by which the whole expense shall be divided. The quotient will give the amount "of the unit of expense. 6. The contracting countries are classified as follows, in view of the division of the expenses : — Ist class : Germany, Austro-Hungary, United States of America, France, Great Britain, Italy, Russia, Turkey ; 3nd " Spain ; 3rd " Belgium, Egypt, Netherlands, Roumania, Sweden ; 4th " Denmark, Norway, Portugal, Switzerland ; 5th " Greece, Servia ; 6th " Luxemburg ; 7. The International Office shall serve as the medium for the regular and general notifications which concern international relations. It shall equally receive from each Office published documents relative to its in- terior service. fi. Each office shall furnish the International Office, in the first half inteebational code. 264e of each year, with a complete series of statistical details relating to the previous year, in the form of tables prepared according to directions from the International Office, which shall distribute with that view forms properly prepared. It shall incorporate those details in a, general statistical report, which shall be distributed to all the Offices. 9. The International Office shall publish, by the aid of the documents which are put at its disposal, a special journal in the German, English, and French languages. 10. The numbers of this journal, as well as all the documents pub- lished by the International Office, shall be distributed to the Offices ol the Union in the proportion of the number of contributing units men- tioned in par. 4. Any additional copies and documents which may be applied for shall be paid for separately at prime cost. Applications of this nature should be made in due time. 11. The International Office shall hold itself always at the disposal of the members of the Union for the purpose of furnishing them with any special information they may require upon questions relating to the In- ternational Postal Service. 12. When it shall have submitted to the solution of the several Offices a question which requires the assent of all the members of the Union, those which shall not have sent in their reply within a, period of four months shall be considered as giving their consent. 13. The Office of the country in which the next Postal Congress is to be held, shall prepare, with the assistance of the International Office, the business to be submitted to the Congress. 14. The director of the International Office shall be present at the sittings of the Congress and shall take part in the discussions, but with- out the power of voting. 15. There shall be issued, under his superintendence, an annual re- port, which shall be communicated to all the members of the Union. 16. The official language of the International Office shall be the French language. XXVIII. Language. — 1. The letter bills, accounts, and other forms used by the Post Offices of the Union shall, as a general rule, be drawn, up in the French language, unless the offices interested arrange other- wise by direct agreement. 2. As regards official correspondence, the present state of things shall be maintained, unless any other arrangement should subsequently be agreed upon by common consent between the Offices interested. XXIX. District of the Union. — The following shall be considered as belonging to the General Postal Union : — 1. Iceland and the Faroe Islands, as forming part of Denmark. 3. The Balearic Isles, the Canary Islands, the Spanish possessions on the Northern Coast of Africa, and the Postal establishnaents of Spain upon the Western Coast of Morocco, as forming part of Spain. 3. Algeria, as forming part of France. 264/ OUTLINES OF AN 4. The Island of Malta,, as subordinate to the Post Office of Great Britain. 5. Madeira and the Azores, as forming part of Portugal. 6. The Grand Duchy of Finland, as forming an integral part of the Empire of Bussia. INTERNATIONAL CODE. 266 CHAPTER XXXVII. POSTAL MONET ORDERS. Abticle 469. International postal money ordeTS. 470. Money order offices. 471. Language. 473. Charges. 473. Gold basis. 474. Indorsement. 475. TJnolaimed money. 476. Settlement of accounts. International postal Tnoney orders. 469. The post department of each, nation shall issue money orders for the transmission between persons in different nations, of sums specified, not exceeding one hundred dollars.' Fifty dollars is the limit set by the conventions for exchange of postal money orders between France and Prussia, July 3, 1865, Art. L, 9 Be Clercq, 339. Switzerland, Mar. 32, 1865, 9 Id., 305. Belgium, Mar. 1, 1865, 9 Id., 185. Italy, Apr. 8, 1864, 9 Id., 10. Postal convention between the United States and Swiss Confed- ) q jg jgg:j, ^^ j ^jg -g- g_ gf^f ^f ^ (2y J gg^^ eratiou, ) >\ •' Italy, Nov. 8,1867," XVII., 16 JcZ., (Tr.,) 339. Italy, July 8,1868," XXIL, 16 Jc?., (3V.,) 335. ' The French treaties fix the limit at two hundred francs. Money order offices. 470. Postal money orders shall be issued at the office of the post department in the cities of London, Paris, New York, Berlin, St. Petersburgh, Vienna, and the other capital cities of the nations parties to this Code ; -266 OUTLINES OF AN and in such others as shall from time to time be desig- nated by special compact between the corresponding jiations. The existing treaties generally leave the designation of all the money .order oflBces to special conventions ; but in a general system, it should seem proper for all nations to unite in fixing and promulgating the desig- nation of certain central offices, correspondence with which is to be com- mon to all. Language. 471. The postal money orders shall be in the lan- guages of the corresponding nations. The French treaties prescribe the French language, providing, how- ,ever, that the German shall accompany the French text, in the orders issued from the German offices. Charges. 472. There shall be charged on each remittance of ^funds, under this Chapter, a tax of one per cent., .which shall always be paid by the sender.' Postal money orders, and receipts or acquittances -therefor, are not subject to any other tax or charge. ' A tax of twenty centimes for ten francs, or fraction of ten francs, is iProvided by the convention for exchange of postal money orders between France and Switzerland, Mar. 33, 1865, Art. II., 9 Be Glereq, 205. Belgium, Mar. 1, 1865, 9 Id., 185. Italy, Apr. 8, 1864, 9 Id., 10. The convention between France and Prussia, July 3, 1865, Art. II., (9 De Clereq, 339,) is to the same effect, except that as to mandats delivered by ,a Prussian office, the tax is two silver groschen for every rate of three .thalers. The above jtreaties- provide that the tax shall be divided equally be- •tween the two postal departments concerned. The postal convention between the United States and The Swiss Con- federation, Oct. 13, 1867, Art. V., (16 U. 8. Stat, at L., (Tr.,) 331,) prescribes .a complicated rule involving, 1, the domestic money order charge of the .despatching office; 3, a charge for international exchange to be fixed by the despatching office, and 3, the domestic charge of the receiving office ; the ifirst two tp be prepaid, and the third to be paid at the office of destination. Gold hasis. 473. If, for ,the internal convenience of any country, jany other cui;rency than gold shall be paid to the ben- .eficiary qf the money order, it shall be made as nearly INTERNATIONAL CODE. 267 as practicable the equivalent of gold, according to the relative values existing at the time ; and if the sender is allowed to pay for his order in any other currency than gold, the amount certified by the international office is, in all cases, to be the equivalent in gold. Postal convention between the United States and the Swiss Confedera- tion, Oct. 13, 1867, Art. VII., 16 U. 8. Stat, at L., {Tr.,) 333. Indorsement. 474- Postal money orders are transferable by in- dorsement. Convention for exchange of postal money orders between France and Prussia, July 3, 1865, Art. I., 9 Be Clercq, 339. Switzerland, Mar. 33, 1865, 9 Id., 305. Belgium, Mar, 1, 1865, 9 Id., 185. Italy, Apr. 8, 1864, 9 Id., 10. Unclaifned money. 475- Sums, unclaimed by those entitled to them, for a period of eight years, become the property of the administration which issued the orders. Convention for the exchange of postal money orders between France and Prussia, July 3, 1865, Art. VI., 9 De Glereq, 339. Switzerland, Mar. 33, 1865, " V., 9 Id., 805. Belgium, Mar. , 1865, " V., 9 Id., 185. Italy, Apr. 8, 1864, " V., 9 id., 10. Compare, however, the postal convention between the United States and the Swiss Confederation, Oct. 13, 1867, Art. VIII., (16 TT. S. Stat, at L., {Tr.,) 333,) which contains a provision that sums which, after a rea- sonable delay, cannot for any cause be paid to the beneficiary, shall be re- certified to the despatching administration, for the benefit of the sender, to be repaid in the manner conformable to the interior regulations of the country of origin. But the administration re-certifying' the same shall have the right to first deduct its domestic charge of the same amount as if the remittance had been paid to the beneficiary. Settlement of accounts. 476. The post departments of the corresponding na- tions shall fix, by special compact with each other, respectively, the times and mode of stating and settling the accounts between them, under this Chapter, and of paying the balances found due from one nation to the other. 18 268 OUTLINES OF AIT TITLE XVII. PATENTS. The feasibility of an international patent law is questioned in the Transactions of the British Nationai Association for Promotion ofSooiai Science, 1862, p. 884 ; 1861, p. 804. Article 477. Protection of patents. Protection of patents. 477. The same protection whicli any nation extends to its own members, or to inventions, designs, or dis- coveries made witMn its limits, sliall be extended upon the same terms and conditions to members of the other nations, and to inventions, designs or discoveries made in any of the other nations, except that, to secure for . a vfork already patented in one nation protection in another, the time for registering it in the latter may be limited to three months. INTERNATIONAL CODE. 26y TITLE XVIII. TRADE- MARKS. Akticlb 478. What may be appropriated." 479. Exceptions. 480. Registry of foreign trade-mark. 481. Declaration. 483. Oflaces where registry is to be made. 483. Equal privileges of foreigners. What may he appropriated. 478. One who produces or deals' in a particular thing,' may appropriate to the exclusive ° use of him- self, and his successors ' in interest, as a trade-mark, within any nation party to this Code, any name, form, or symbol which has not been so appropriated by an- other in such nation, ° to designate the origin or own- ership thereof. But this Title does not authorize the exclusive appropriation of that which is merely either, 1. A name already enjoyed by another person, firm or corporation ;° or, 2. A common or proper name already in use to de- signate the thing, or any of its qualities, or its destina- tion ; or, 3. An arbitrary sign, not signifying origin or own- ership/ ' A dealer is entitled to protection, though he be not a manufacturer. Taylor «. Carpenter, 3 Sandford's Oh. {New York) Rep., 603. A product of nature, such as the waters of a mineral spring, named and dealt in by the plaintiff, is within the principles of the law of trade- marks. The Congress and Empire Spring Co. «. High Rock Congress Spring Co., New York Court of Appeals, April 1871, 10 Abbott's Pr. {New York) Bep.,{N. 8.,) 343. The doctrine of trade-marks is founded on the necessity of protection for business iutereats. The mere assumption of a family name without any connection with trade, is not the subject of a civil action by the 270 OUTLINES OF AN English law. DuBoulay v. Du Boulay, 3 Law Bep., Privy Oouneil, 430; 17 Weekly Bep., 594 ; 38 Law Journal, Privy Council, US ; 6 Moore's Prvoy Council Cases, {N. 8.,) 31. Nor can one who does not produce or deal in, an article invoke the law of trade-marks to prevent the producer of, or dealer in, it from using the name of the former. Such a grievance is rather in the nature of defamation. Clark v. Freeman, 12 Jurist, 149 ; 17 Law Journal, Gh., 143. 2 The title of a newspaper is within the principle. Matsell v. Flanagan, 2 Abbott'sPr. {New York) Bep., {N. ;S.,)459 ; Stephens «. De Conto, 4 Id., 47. And the principle may have a local application to a particular busi- ness; «. g'., to the title of a hotel. Howard v. Henriques, 3 &»(?/or(?'« (New TorK) Bep., 735 ; Deitz v. Lamb, 6 Robertson's {New York) Bep., 537. * In Lemoine v. Ganton, (3 E. D. Smith, 343,) it was held that, after a manufacturer had changed his trade-mark, ho was still entitled to enjoin the sale by others of goods put up by them under the trade-mark which he had discontinued, thus falsely purporting to be of his manufacture. * The right to use a trade-mark is assignable, even when the mark is a personal one, unless it be so purely personal as to import that the thing is the manufacture of a particular person. Berry v. Bedford, 10 Jur., (N. S.,) 503 ; 33 L. J. Ghanc, 465 ; 13 W. B., 737 ; 10 L. T., (N. &,) 470. In such a case the assignee's use would be deceptive, and therefore would not be protected. Leather Cloth Co. v. American Leather Co., 11 Jur.,{N. S.,) 513 ; 35 L. J. Ghanc, 53 ; 13 W. B., 873 ; 12 Law Times. (N. 8.,) 743 ; 11 Souse of Lords Cos., 533. See Article 479. The right to use the trade-mark passes, by operation of law, by an as- signment of the business ; thus, a sale of a mineral spring, without ex- pressly including the good- will, or the right to use particular marks, car- ries to the purchaser the right to use the name of the spring adopted by the former proprietors as a trade-mark. The Congress & Empire Spring Co. V. High Rock Congress Spring Co,, 10 Abbott's Pr. {New York) Bep., {N. 8.,) 349. See, also, Hudson v. Osborne, 39 Law Journal Ohanc, 79. ' The use is protected only in the places where the trade-mark is used by the plaintifE before it is used by others. Corwin v. Daly, 7 Bomoorth {New York) Bep., 333. 6 Act of Congress, July 8, 1870, § 79 ; Faber v. Faber, 49 Barbour, 357 ; S. C, 3 Abb. Pr., {N. 8.,) 115. And see Burgess v. Burgess, 3 I>e Q. M. & (?., 896 ; 17 Jur., 393 ; 33 L. J. Ghana., 675; Schweitzer ■B.Atkins, 37 Law Jour. Ghanc., 847; 16 Weekly Bep., 1080 ; 19 Law Times, {N. 8.,) 6. ' Collins Co. V. Brown, 3 Eay & Johns., 438 ; 3 Jwrist, {N. 8.,) 939 ; Amos- keag Manufacturing Co. v. Spear, 2 8andf., 599 ; Petridge v. Wells, 4 Abb. Pr., 144. The effect of this qualification wUl be in accordance with the English and American decisions, that the prior use or appropriation of any name or sign of either of these classes can only be protected in the case of foreign trade-marks, when accompanied by a mark sufficient to distin- guish its origin or ownership from the same name or sign when lawfully INTEKNATIONAL CODE. 271 used by other persons; and then it is only the combined mark that is protected. Exceptions. 479. Article 478 does not apply to any unlawful busi- ness, or to any material whicli is injurious in itself, or to any trade-mark whicli has been fraudulently ob- tained, or which is used with the design of deceiving the public in the purchase or use of any material. Act of Congress of the United States concerning patents, &c., July 8, 1870, Art. 84, JI. 8. Stat, at L., vol. 16 ; Leather Cloth Co. v. American Leather Cloth Co., 11 Jur., {K 8.,) 513; 35 L. J., Ohane., 58; 13 W. B., 873 ; 12 L. T., {N. 8.,) 743 ; 11 H. L. Cas., 523 ; Hobbs v. Francis, 19 mw. Pr., 567. It was held in Curtis v. Bryan, (36 Row. Pr., 33,) that the principles upon which courts have refused to protect a trade-mark which involved a deception upon the public, do not extend to cases where the deception alleged is not in the trade-mark itself, but in advertisements used to ad- vance the sales of the article ; but the provision of the act of Congress of the United States, mentioned above, seems to refuse protection in such a case. The use of the word "patent," however, on goods not actually pat- ented, but which by long usage are known by that name in the trade, is not such a misrepresentation as deprives the user of protection. Mar- shal] «. EoHS, 8 L. B. Eq., 651 ; 17 W. B., 1086; Stewart ®. Smithson, 1 Raton, 119. Registry of foreign trade-mark. 480. To enjoy the protection afforded by this Title, in any nation other than that in which the claimant is domiciled, the trade- mark must be registered in such nation, with a statement of the following particulars : 1. The name of the party who desires the protection of the trade-mark, and his residence and place of bus- iness ; 2. The class of merchandise, and the particular description of goods comprised in such class, for which the trade-mark has been or is intended to be appropriated ; '6. A description of the trade-mark itself, with a fac- simile thereof, and the mode in which it has been or is intended to be applied and used ; and, 272 OUTLINES OF AN 4. The length of time, if any, during which the trade-mark has Ibeen nsed. Act of Congress of the United States, July 8, 1870, § 77. This leaves it to each nation to protect domestic trade-marks to such extent as iqay be deemed suitable. Thus, in France, certain tradesmen in particular cities enjoy the exclusive use of a mark peculiar to articles of their trade produced in that city. Declaration. 481. There must also be filed in the same office with the registry, a declaration, under the oath of the party or his agent, to the effect that the claimant has a right to the use of the same in such nation, and that no other person or corporation has a right to its use there ; and that the description and fac-simile presented for registry are true. Offices where registry is to he made. 482. The registry of trade-marks under this title, in each nation, is to be made in the office of the chief secretary of state for the interior or home department, and in such other offices as shall from time to timef be designated by the legislative authority of the nation. In the Hansbatic Cities, the tribunal of commerce is designated aa the place of registry. Treaty of commerce and navigation between France and the Free Cities of Lubeck, Bremen and Hamburg, March 4, 1865, Art. XXIV., (9 Be Ckrcq, 187, 195.) In the NBTHBRiiANDB, two copies in the registry of the tribunal of the arrondissement at Amsterdam. Treaty of commerce and navigation betvreen France and the Nether- lands, July 7, 1865, Art. XXIV., (9 De Olereq. 337, 343.) In Atjstbia, tvfo copies in the chamber of commerce of Vienna. Treaty of commerce between France and Austria, December 11, 1866, Art. XII., (9 De Glercq, 646, 649.) In the Grand Duchy of Baden, " au bureau bailliage de la ville du Carlsruhe." Convention between France and the Grand Duchy of Baden, July 3, 1857, Art. II., (7 De Clereq, 398.) In BussTA, in the department of manufactures and internal commerce, at St. Petersburg. Treaty of commerce and navigation between France and Russia, Art. XXII., {7 De Olereq, 378, 386.) INTEENATIONAL CODE. 273 In PoSTTTGAL, at the registry of the tribunal of commerce de premiSre instance. Convention between France and Portugal, April 12, 1851, Art. XVII., (6 J06 aereq, 101, 107.) In Pkance, in the registry of the tribunal of commerce [of the Seine,] or the council of prud'hommes. ' Treaty or convention between Prance and Free Cities of Lu-) beck, Bremen [• Mar. 4, 1865, Art. XXIV., 9 De Olercq, 187, 195. & Hamburg, ) Netherlands, July 7, 1865, " XXIV., 9 U., 337, 343. Austria, Dec. 11, 1866, t " XII., 9 Jd, 646, 649. Grand^DuchyofJ .. j,^ , ,,., ,93. Eussia, June 14, 1857, " XXII., 7 U., 378, 286. The convention between Prance and Portugal, April 13, 1851, Art. XVII., (6 Be Olercq, 101,) designates the registry of the tribunal of the Seine. The Act of Congress of the United States concerning " patents," July 8, 1870, provides for the registration of trade-marks in the Patent Office in Washington, D. C. Equal privileges of foreigners. 483. Every nation party to this Code, wMch pro- vides for the registration of doinest,ic trade-marks, must allow, upon the same terms and with the same effect, the registration of foreign trade-marks by mem- bers, and domiciled residents of the other nations. 274 OUTLINES OF AN TITLE XIX. COPTBIGHTS. The International Copyright Congress, held at Brussels in 1858, re- solved : 1. On the principle of an international recognition of property in works of literature and art, in favor of their authors; 2. This principle ought to be admitted, even in the absence of re- ciprocity ; 3. Foreign authors should be on the same footing as native; 4. Additional formalities should not be required of foreign authors; it should be enough to comply with the formalities of the law of the place of first publication ; 5. It is desirable that all countries should adopt legislation on an uni- form basis. France (says Blaine, in paper in Transaefions of National Assoeiation for Promotion of Social Science, 1863, p. 868,) has adopted the first four rules, and alone has dispensed with conditions of reciprocity. Under the French law it is unlawful, without the permission of the author, to publish a work already published in a foreign country with which no copyright convention exists. Uopinger on Copyright, ch. XVIII.^ p. 240. The principal French conventions are with Austria, Dec. 11, 1866, 9 De Glercq, 664. Pontifical States, July 14, 1867, 9 Id., 731. Portugal, July 11, 1866, 9 Id., 593. *'LuxemtSg,'(°-16,1865.9id,416. Hanover, July 19, 1865, 9 Id., 366. Duchy of Nassau, July 5, 1865, 9 Id., 333. *^ Hesse'^"^^ °^\ ^'"'^^ ^*' ^^^^' ^ ^^- ^^°- Grand Duchy of 1 Mecklenburg- [-June 9, 1865, 9 Id., 803. Schwerin, ) Stz"^"'^' } Sep*- 19. 1865, 9 Id., 373. Saxony, May 26, 1865, 9 Id., 386. Baden, May 12, 1865, 9 Id., 244. Frankfort, Apr. 18, 1865, 9 Id., 333. Bavaria, Mar. 24, 1865, 9 Id., 222. Belgium, May 1, 1861, 8 Id., 264. Prussia, Aug. 2, 1862, 8 Id., 495. > INTERNATIONAL CODE. 275 —(extended to) Electorate of Hesse, 9 Id, 205 ; Principalities of Reuss, 9 Id., 321, 283 ; of Schwartzburg-Rudolstadt, and of Schwartzburg-Son- dershausen, 283 ; of Waldeck and Pyrmont, 284 ; of Lippe and of Anhalt, 373 ; of Lippe Detmold, 470 ; of Schaumbourg Lippe, 471 ; to the Duchies- of Saxe Altenbourg, 238 ; of Brunswick, 233 ; of Saxe Coburg Gotha, 285 ; of Anhalt Dessau, 472 ; and to Hesse Hornbourg, 284. England has international copyright conventions (less complete and liberal than those of France,] with Prussia, Prance, Italy, Belgium, Spain and some other Powers. Article 484. Ownership of products of the mind. 485. Transfer. 486. Subsequent inventor, author, &c. 487. Private writings. 488. Correspondence addressed to public offices. 489. Right of protection. 490. Extent of protection. 491. Translations. 493. Extracts from newspapers and periodicals. 493. Power to prohibit works. 494. Saving clause as to existing works. OwnersMp of products of the mind. 484. The author of any product of the mind, whether it be an invention, or a composition in letters or art, or a design, with or without delineation, or other graphi- cal representation, has an exclusive ownership therein,^ and in the representation or expression thereof ; and the sole right to copy the same or reproduce it in any form, or to modify or adapt it or any part of it to new circumstances, subject to the provisions of this Title. The Civil Code, reported for New York, § 439. Tills provision establishes an international recognition of property in works of literature and art, in favor of their authors, and without refer- ence to reciprocity (except to the extent to which all provisions of this. Code are reciprocal,) which are the first two principles agreed upon by the International Copyright Congress of Brussels, of 1858. The Ciml Code, reported for New York, (§ 430,) also provides for joint ownership. It has been held in the New York Superior Court, that the common law light of the author of a dramatic composition is not affected by the ordinary public representations, and that a spectator's reproducing the composition from memory was an infringement. Palmer v. De Witt, 40 Howard's Pr. (New York) Rep., 398. 276 OUTLIKES OF AN Transfer. 485. The author of any product of the mind, or of any representation or expression thereof, may transfer his property in the same, or any part thereof, and thereupon the property transferred becomes subject to further transfer like other property. The Gmil Code, reported for New York, § 431. Subsequent inventor, author, &c. 486. If the owner of a product of the mind does not make it public, any other person subsequently and originally producing the same thing has the same right therein as the prior author, which is exclusive to the same extent against all persons except the prior au- thor, or those claiming under him. The Oivil Code, reported for New York, § 433. Private writings. 487. Subject to the next article, letters and other private ' communications belong to the person to whom they are addressed and delivered ; " but they cannot be published against the will of the writer,' except by authority of law. The Uiml Code, reported for New York, % 484. See Woolsey «. Judd, 4 Dtier's (New York) Sep., 889, and cases there cited ; Eyre v. Higbee, 35 Barhour's (New York) Rep., 502. Compare Gopinger on Copyright, ch. II., p. 34, and authorities cited in note (d.). ' CommumcatioQS received from correspondents by,editors or propri- etors, (if sent expressly or impliedly for the purpose of publication,) be- come the property of the person to whom they are directed, and cannot be published by any other person obtaining possession of them ; nor by such editor or proprietor, if, previous to publication, the writer expresses a desire to withdraw them. Gopinger on Gopyright, ch. II., p. 33. " The difficulty in definingthe rule upon this subject arises from the fact that two rights are involved : First, the ownership of the document, with the incidental advantages attaching to the personal control of it as a re- pository of the information communicated, — such, for instance, as the right to use it as evidence, or to destroy it, (see Eyre ®. Higbee, 85 Bm- bour's (New York) Rep., 503, 518,)— which ownership is protected by the same rules that apply to other chattels; Secondly, the right of property in the product of mind embodied in the document, and which remains in the author when the communication is private, that is to say, not intended for publication — a right which extends to the control, not of the document as a thing, but to controlling the reproduiition of the form in which IlfTERNATIONAL CODE. 277 thought is embodied in it— a right which becomes important in proportion to the value of the mental product. s It may be a question whether the affirmative consent of the writer, or his personal representatives or assigns, should not, in strictness, be made the condition. Correspondence addressed to public offices. 488. The government of a nation has the right to publish or withhold all letters addressed to its public offices. Curtis on Copyright, 98. RigTit of protection. 489. Any nation may prescribe the formalities requi- site to the enjoyment of copyright within its jurisdic- tion, and may limit the copyright to any period not less than twenty-five years, but for such period the rights of an author, as defined by article 484, must be pro- tected by the laws of every nation, and the formalities prescribed must not be oppressive. Extent of protection. 490. The same protection, even beyond that secured by the last article, which the copyright laws of any nation extend to its own members, or to works pro- dticed or first published within its limits, must be ex- tended, npon the. same terms, to the members of the other nations, and to works produced or first published therein ; except that, to secure for a work first published in one nation protection in another, the time for regis- tering it in the latter may be limited to twelve mouths, and a deposit of a foreign copy may be required. The European copyright treaties, — of which there are a number, uniting France with Great Britain, Austria, the German States, Portugal, Bel- gium, Switzerland, Russia, the Pontifical States, the Netherlands, and other countries, — are generally framed by enumerating the classes of works protected, and by prescribing the method of registration for copy- righting a foreign work. The following summary of the treaty between Great Britain and France, Nov. 3, 1851, gives an indication of the provisions common in these treaties : The authors of works of literature and art published in England shall have the same protection in France as French authors have there, and vice versa. 278 OUTLINES OF AN Works of literature and art are understood- to comprehend books, dra- matic works, musical compositions, drawings, paintings, sculptures, en- gravings, lithographs, and any other production 'whatsoever of literature or the fine arts. The protection grantfid to original works is extended to translations; it being, however, clearly understood that protection is afforded simply to a translator in respect of his own translation, and not to confer the exclu- sive right of translating upon the first translator of any work. If the author of any work published in either country wishes to reserve to himself the exclusive right of translating his work in the other coun- try, he may do so for five years from the first publication of the transla- tion authorized by him, on complying with the following conditions : 1. The original work must be registered and deposited in the one country within three months after the publication in the other. 2. The author must notify, on the title-page of his work, his intention to reserve the right of translation. 3. At least a part of the authorized translation must appear within a year after the registratiiin and deposit of the original, and the whole must be published within three years after the date of such deposit. 4. The authorized translation must appear in one of the two countries, and be registered and deposited in the same way and within the same time as an original book. With reference to works published in parts : each part is to be treated as a separate work, and registered and deposited in the one country within the three months after its first publication in the other, and a declaration by the author to the efiect that he reserves the right of translation in the first part, will be sufficient. Dramatic works and musical compositions are protected in France to- the same extent as in England. The translation of a dramatic work, how- ever, mast appear within three months after the registration and deposit of the original. This protection is not intended to prohibit fair imitations or adaptions of dramatic works to the stage in England and France respectively, but is only designed to prevent piratical translations. And the question, what is an imitation or a piracy, is in all cases to be decided by the courts of jus- • tice of the respective countries, according to the laws in force in each. Extracts from newspapers and periodicals may be freely taken from either country, and republished or translated in the other, if the source whence they are taken be acknowledged, unless the authors of the ar- ticles shall have notified in a conspicuous manner, in the journal or pe- riodical in which such articles have appeared, that they prohibited the republication or translation thereof. This stipulation,however,does not apply to articles of political discussion. Importation of pirated copies is prohibited, and in the event of an infraction of this prohibition, the pirated works may be seized and destroyed. In order to obtain protection in either country, the work must be regis- tered in the following manner : INTERNATIONAL CODE. 279 If the work first appear in France, it must be registered at Stationers' Hall, London; if it appear first in England, at tlie Bureau de la Librarie of the Ministry of tbo Interior at Paris, within three montlis after the first publication in England. As to works published in parts, they must be registered within three months after the publication of the last part; but in order to preserve the right of translation, each pai:t must be regis- tered within three months after its publication. A copy of the work must also be deposited within the same time as the registration to be made, either at the British Museum in London, or in the National Library in Paris, as the case may be. The certified copy of the entry in either case is evidence of the exclu- sive right of publication in both countries until the contrary is proved. With regard to articles other than books, maps, prints, and musical compositions, in which protection may be claimed, any other mode of regis- tration, which may be applicable by law in one of the two countries to any work or article first published in such country, for the purpose of affording protection to copyright in such article, is extended on equal terms to any similar article first published in the other country. See, also, convention between Great Britain and T, . T X -loe-e ( Accounts and Papers, 1856, vol. LXI., (34.) Prussia, June 4, 1855, j (Additional to convention of May 13, 1 846.) Belgium, Aug. 13, 1854, Id., 1854^5, vol. LV., (26.) Article 490 above, however, seems to present an equally efficacious and more simple rule ; and the right of aliens to avail themselves like citi- zens of the copyright laws being thus conceded, all the proper legal rem- edies are assured, as in other oases, by the provisions of Part VI., respect- ing The Administration of Justice. No distinction is made in Prance, between foreigners and French sub- jects, as to copyright, provided they make the necessary deposit. All kinds of unpublished works, lectures, &c., are the exclusive property of their authors. Le'bi's Commercial Law, vol. II., p. 581 ; Gopinger on Copyright, ch. XVIIL, p. 239. Mr. Blaine suggests that an uniform system of registration and inter- national exchange of records be adopted, so that registry, according to the law of the State of first publication, will be followed by transmission of the record to the other nations, and consequent protection tKere. Trans- actions of National Association for Promotion of Social Science, 1863, p. 869. The drafted treaty between Great Britain and the United States, 1853, contained a provision that when a foreign work is copyrighted the edition must be as cheap as the cheapest foreign edition. Translations. 491. Copyriglit includes the right of translation into other languages ; but, in order to preserve such right, the intention to do so must be announced upon the title- page of each volume, and of each part, if published in parts, and the publication of a translation must be 280 OUTLIlfES OF AIT commenced within one year from th.e publication of the original. Unless the right of. translation is secured under this article, any translator may have a copyright of his translation. See the convention between Prance and Austria, Dec. 11, 1866, Art. IV., (9 Be Clereq, 664,) and these with the German States, 1865, 9 Id. And see note to Article 490, concerning translations of dramatic works. , The French conventions with Portugal and several of the German States contain a provision that the author of a dramatic work, who would reserve the exclusive right of translation and of representation, must publish his translation, or produce the piece on the stage within three montlis after the formalities of copyright. Extracts from newspapers and periodicals. 492, Extracts from newspapers and periodicals pub- lished in one nation may be freely republished or trans- lated in another, if the source whence they are taken be acknowleged ; except that the author or publisher of an article not involving political discussion may re- serve strict protection by a conspicuous notice pub- lished with the article. See note to Article 490, and the conventions there referred to. To the same effect are the conventions between France and Austria, Portugal, German States, Pontifical States, and Russia. Power to prohibit works. 493. The provisions of this Title are subject to the power of any nation to control or prohibit the impor- tation, sale, circulation or publication, within its ter- ritorial limits, of any work or production. This qualification is usual in the treaties, to reserve the ordinary meas. ures of police, and also any obligations arising out of agreements with other nations by which particular works may have been prohibited. Saving clause as to existing works. 49 A, The provisions of this Title do not prevent the continuation of the publication or sale in any nation of works already in part or wholly published therein. The convention between France and Portugal qualifies this provision by adding that no further publication can be made other than necessary t(i complete orders or subscriptions already commenced. In the treaty between France and. Russia, the saving clause extends to works to be piiblished within one year. INTERNATIONAL CODE. 281 TITLE XX. MONET. Article 495. Adjustment of accounts between nations, and between members of different nations. 496. The money of account to follow the law of decimal sub- division. 497. Gold to be the standard. 498. The standard of fineness prescribed. 499. Definition of the money unit. 500. What gro\A coins shall be legal tender. 501. Silver coinage. 503. What silver coins shall be legartender. 503. Limits of variation from standard weight or fineness with- in which coins shall be current. 504. Standard weights. 505. Scrutiny of the coinage. 506. Coins may be called in by proclamation. 507. XJncurrent coins may be destroyed. 508. Coins of base metal not to form a part of the international currency. AdjustTnent of accounts between nations, and be- tween members of different nations. 495. All accounts and transactions between the na- tions, and between the members of different nations, involving money, shall be rendered and settled in terms of the Tinit of money established by this Code, and of its subdivisions. The first of the propositions agreed upon by the international monetary convention held in Paris, in 1867, declared that " an identical unity " ought to be established between the gold coins of all nations. Identity in the common money unit does not necessarily require uniformity of coinage, tlioughthe coins should stand in such simple relations to the unit that all the larger national coins may have an international circulation. In this manner the system of coinage which is found to be practically the most convenient will ultimately prevail, and secure universal acceptance. The money of account to follow the law of decimal subdivision. 496. The denominations of money higher and lower ■282 OUTLINES OF AN tlian tlie unit, shall be decimal multiples and sub- multiples of tbe unit. The conclusive argument in favor of the decimal system of money •weights and measures is, that this is the system of our arithmetical nu- meration, and that by its adoption abstract and concrete values are reduced to a common form of expression. If it were practicable, in abstract arith- metic, to introduce a different law of Increase, a more convenient ratio might possibly be found than the decimal, but no advantage which could be secured by the adoption of such a ratio in the affairs of life, can be a compensation for the great disadvantage which accompanies any de- parture from the law of numbers. This consideration determined the adoption of the decimal division iu the metrical system of money, weights ind measures, and in the American system of money. Coins may be struck, according to convenience, of multiples, and sub- multiples, of the unit, not decimal. Gold, to be the standard. 497. The monetary standard shall be gold only. The principle of a double standard is illogical. It assumes that law ■can make a relation permanent which nature has made variable. In de- fense of the double standard it has been argued by some authorities, and notably by Mr. Wolowski, at the international conference of 1867, that such a standard tends to maintain greater stability in the measure of value, by preventing a serious disturbance of prices on occasion of an abnormal scarcity of one or the other of the precious metals. Practically, however, where a double standard has existed, the effect has been to induce a debasement of the coinage in that metal of which the market value ex- ceeds the legal. Accordingly, thougli at the time of the international conference of 1867 a double standard actually existed in a number of the States represented, the conference was unanimous in favor of a single standard ; and though in all but two of these twenty States the existing standard was either silver, or both silver and gold, the conference pro- nounced with equal unanimity for gold only. This metal is recommended by its superiority of value over silver of equal b-ulk or weight," and its con- sequently greater portability, and by the fact that it is practically already, iu Europe and America, the medium of all large monetary transactions. The standardbf fineness prescribed. 498. The standard quality, or degree of fineness, of the metal employed in coinage, shall be nine parts of pure gold to one part of alloy. The existing diversity among the coins of different nations, as it re- :spects alloy, is very great. For gold coins, the standard fineness above proposed has been adopted by Prance, Belgium, Switzerland, Italy, the United States, Prussia, Bavaria and Spain ; also by Austria, for her crown -and half-crown, and by Holland, for her double William, and its submul- tiples. For her ducat and double ducat, Holland employs an alloy con- INTEENATIONAL CODE. 283 taining fifty-nine parts of pure gold out of sixty of total weight. Austria, for the coin of the same name, prescribes a fineness of seventy-one parts out of seventy-two, which is the quality of metal used also by Wiirtem- berg for her gold coins. Great Britain, Portugal, Brazil and Turkey employ a standard consist- ing of eleven parts of pure gold out of twelve in total weight; and Sweden, one of thirty-nine parts out of forty. Elsewhere, the standard falls below nine-tenths ; being lowest in Egypt, where it consists of seven parts of pure gold out of eight of total weight. Official Report on the International Exposition of Coin^, Weights and Measures of 1867. The fineness of silver coins is equally various. For their larger coins, France, Belgium, Switzerland, Italy, Prussia, Bavaria, Wiirtemberg, Baden, Hesse, Austria, Spain and the United States adhere to the standard of nine-tenths. England employf'S thirty-seven fortieths, and Holland 945-1000. Elsewhere, generally, a lower standard, of varying fineness, prevails ; and as a rule, in all countries the subsidiary silver coinage is debased below nine-tenths. Report above died. Some of these irregularities will necessarily disappear, in the natural course of events. A single monetary system will no doubt soon replace the diversities which are at present found in the German States ; and the standard of Prussia and Bavaria will prevail throughout the empire. By far the larger part of the coinage of the world (that of Great Britain being for the moment put out of the question) is therefore now, or will shortly be, conformed to the standard fineness of nine-tenths, as it re- spects both gold and silver. The delegates of Great Britain, at the inter- national conference of 1867, assented to the expediency of conforming the British coinage in future to the same standard. Report of the British Delegates to the International Monetary Conference. It is in favor of this compound, that it is superior to most others, and to the pure metal, in point of hardness, and is therefore conducive to tlie durability of the coinage. Since the value of coin is estimated according to the weight of fine metal which it contains, the base metal forming the alloy being accounted as worth nothing, it would be quite possible to have coins identical iu value while differing both in appearance and in weight. Such coins would lack the qualities essential to secure to them an international circulation ; and beyond the limits of the States by which they were issued, they would be regarded as foreign, and would be received with hesitancy. Their variety would also increase the difficulty of distinguishing the genuine from the spurious. Moreover, in making payments it would be impossible to transfer coin from hand to hand by weight, in case the coins of different countries were mixed; a circumstance which in itself would be found to be a great disadvantage. In order, therefore, that there may be created a coinage truly interna- tional, it is indispensable that there should be universally adopted an uniform standard of fineness in the metal employed. In these considerations there is likely to be found an obstacle to the probably successful working of a plan proposed in 1870 by the govern- 19 284' OUTLINES OF AN meut of the United States to the governments of Europe, through a circular dispatch of the Secretary of State to the ministers of the United States resident abroad, the object of which was to avoid the diflBculties attendant on the immediate creation of an international coinage for universal and exclusive use, by effecting, what is called in the dispatch, an assimilation of the several national coinages. In order to this, the plan proposed that the existing gold coins of all nations should be retained under the same denominations as at present; but that they should be slightly modified in weight, so that the weights of fine gold contained in them should be exact multiples of a certain assumed unit weight. The unit weight suggested was one decigramme of fine gold. This plan would make the values of the gold coins of the several nations commensurable with each other; but the ratios of commensurability which it would introduce would lack the desired simplicity ; and the diversity of the alloys in use would pre- vent any national coinage from securing an extensive international cir- culation. Definition of the money unit. 499. The unit to be taken as the basis of the inter- national monetary system, shall be called a dollar ; and shall be of the value of one and a half grammes of fine gold, or five tergrammes ' of standard gold. ' The word tergramme, formed on the principles of the metric nomen- clature, signifies one-third of a gramme. In the determination of a unit to serve as the basis of the System, the choice lies between three possibilities: 1. To take for the purpose some value totally different from that of any existing coin or denomination of money, by the adoption of which all monetary systems at present eysting will be superseded. 2. To take some coin or denomination of money actually existing ; that is, to take some type which is at present, simply national, and to make it universal. 3. To take some value which, in itself, or in its multiples or submul- tiples, shall so nearly approach the principal coins of the nations embrac ing the largest population, and most largely engaged in conducting the world's exchanges, that these, by means of inconsiderable changes, may be accommodated to it. On purely theoretical grounds, the first of the expedients here pre- sented is preferable to either of the others. Coins must be adjusted by weight ; and in the absence of any actual system of coinage, it would be advisable to make the unit of money identical witli the unit of weight, or with some simple subdivision of that unit. Supposing the metric system of weights to be legalized, the absolute weight of any mass of standard metal, coined or uncoined, would thus have the same numerical expression as the absolute money value ; or these expressions would differ only in the place of the decimal point. In the actual state of things, however, it is to be borne in mind that the habits of thinking of all peoples, iu regard to objects of value, have been INTERNATIONAL CODE. 285 formed upon their existing monetary systems, and that tlie prices of all commodities have been adjusted in accord9,nce with the denominations of money in daily use. While, therefore, it is desirable that the unit of money should be related to the unit of weight in as simple a ratio as practicable, it must be considered that any scheme which shall break up all these familiar associations, will be unacceptable to practical men ; so that, whatever may be its merits in a point of view purely scientific, it will probably fail of success. It is also to be borne in mind that the amount of gold and silver coin now in existence cannot be less than $2,500,000,000 ; * and that if a plan of monetary unification can be de- * The total amount of coin existing can only be matter of estimate. The amount assumed above is the estimate of Mr, McGulloch, in his arti- cle on the " Precious Metals," in the Eneyclopcedia Britanniea. Mr. Mc- CoUoeh names, in a note appended to the article cited, the numerous au- thorities upon which he has founded his conclusion. He gives to Great Britain £70,000,000 or £75,000^000, as representing the gold and silver currency, and the reserves in the banks. Professor Jevons, in a recent communication (1868) to the Statistical Society of London, puts the gold coin in sovereigns and half-sovereigns, at £80,000,000 ; and Mr. Miller, of the Bank of England, cited by Dr. Parr, in his report to the international Statistical Congress at the Hague, (1869,) maintains that it cannot be less. As Professor Jevons puts the silver coinage of Great Britain at £14,000,000, bis estimate for the total amount of gold and silver coin existing in Great Britain is £94,000,000, exceeding that of Mr. McOvlloch very materially. Mr. McGulloch gives to France £130,000,090, or £140,000,000 ; mak- ing for the two countries. Great Britain and France, £200,000,000; or £315,000,000 ; say $1,050,000,000. For the rest of Europe, for North and South America, for Australia, for the Cape of Good Hope, and for Algeria united, he supposes the amount may be in tlie neighborhood of £300,- 000,000; so. that, for all the world, exclnding Asia and the African States, except Algeria, the total is probably between £490,000,000 and £510,000,000 ; that is to say, £500,000,000, qr $3,500,000,000. Mr. 8. B. Buggies, of New York, delegate of the United States to the international monetary conference at Paris in 1867, in a written argument addressed to that body in favor of the coinage of a gold piet-c of the value of twenty-five francs, stated the total amount of the United States gold coinage up to 1866, at $845,500,000, of which he assumed that $800,000,000 still exists in the country. He gave the total of gold coin existing in France, Belgium and Italy, according to the estimates of M. de Parieu and other distinguished publicists, at $1,400,000,000 ; and he assumed that in all Europe the total would not be less than $1,800,000,000. This estimate seems moderate, when we consider that Mr. McGulloch cites as probable an estimate for Russia only, of about $370,000,000 : and con- sider further, that there remain Spain, Portugal, Holland, Denmark, Swe- den, Norway, Switzerland, Austria and Germany still to be accounted for. Taking, however, the estimates of Mr. Buggies for continental Europe, at $1,800,000,000, and for the United States, at $300,000,000, along with those of Messrs. Jewns and Miller, for Great Britain, of say $500,000,000, we have already a total of $2,600,000,000 ; without considering Mexico, the British Possessions in North America, the West India Islands, Central America, South America, Australia, th^ Cape, and Algeria, for which it would be a low estimate to suppose that tliey have among them $400,- 000,000. The amount, therefore, assumed above as the total of the gold and silver coinage of European nations, and of nations and colonies of European origin, still actually existing, is probably considerably below, rather than above, the real amount. 286 OtJTLINES OF AN vised under which a large portion of this great sum may still be em- ployed to subserve the purposes of money without recoinage, this consideration will weigh heavily in its favor. It happens that the relations of the representative coins of France, the United States and Great Britain, form nearly a geometrical series. This fact has led to a number of suggestions, all contemplating the possibility of bringing these coins, and through them the monetary systems of the three countries, into complete harmony, without entailing any serious inconvenience upon thepeoples concerned. Sucha result might be reached by adopting the second or the third of the possible modes of unification pointed out above ; that is to say, by taking the franc, the pound sterling, or the dollar, at the actual value of the coin chosen, as the money unit ; or, on the other hand, by assuming a value having metric relations, unlike any one of these coins, but capable, by slight changes in their several values, of being brought into harmony with all of them. "It is an objection to the adoption of the franc, the sovereign, or the dollar, at the precise values which now belong to these coins by law, that the weight of no one of them is expressible in an exact number of grains or of grammes, or even in a number of grains or of grammes embracing only simple fractions. Notwithstanding this very serious objection, the international conference at Paris- did not hesitate to recommend, with a near approach to unanimity, that the French gold piece of five franca, of the metric weight of gr. 1.613903, should be made the basis of an inter- national system of money. To this weight it was proposed to reduce the ' American dollar, from its present metric weight of gr. 1.671813 ; a reduc- tion which would diminish its value a little more than three and a half per cent. ; and to accord with this, it was likewise proposed to coin the British sovereign of the metric weight of gr. 8.064515 with a fineness of nine-tenths, instead of gr. 7.98805, as at present, of the fineness of eleven-twelfths, (the British standard,) which is equivalent to a weight of gr. 8.13598, of the fineness of nine-tenths ; by which change its value would be reduced 88-100 of one per centi The argument which seems to have decided the conference in favor of this proposition, was the fact that the French system of coinage is now the system also of Belgium, Switzerland and Italy as well, by virtue of a monetary treaty concluded December 23, 1865, which is to remain in force until January 1, 1880, and longer, if not sooner repealed. A system which has already secured acceptance with half Europe, (excluding Russia and the Scandinavian States,) and which is represented by an actual coinage of no less value than $1,400,000,000, or $1,500,000,000, was presumed to be too strongly rooted to be superseded even by a better one ; and im- pressed with this conviction, the conference believed that Great Britain and the United States would be constrained to adopt the same system, and thus determine its ultimate adoption by all nations. A request was therefore presented to the government of France, to in- vite all the governments which were represented in the conference, to signify, on or before the 15th day of February, 1868, their willingness to INTEilNATIONAL CODE. 287 adhere to tlie basis proposed, or tlie contrary. Up to the present time it is not known that anj notices of adhesion have been sent in* In Great Britain, a royal commission reported upon the proposition, in July, 1868, unfavorably ; and the efforts which have been repeatedly made to secure a more favorable result in the American Congress have thus far failed. There is no prospect, therefore, that the plan proposed by the conference can soon command acquiescence from any nations be- yond those which have already committed themselves to its temporary use. Its adoption, had it succeeded, would have established a permanent dis- cordance between the system of coinage and the metric system of weights «,ud measures ; and on that account its failure is by no means to be re- gretted. The fact, moreover, seems to be, that the entire body of the coinage of gold and silver which has been issued from the French mints jn this basis is below the legal standard in regard both to fineness and to weight.f {Director U. 8. Mint Hep. for 1867. Baron Eugene Nothomb in Prussian Annals.) So that, in its present condition, it could never be received as part of an international coinage. The argument, therefore, drawn from its large amount, falls to the ground. Neither the pound sterling, nor the dollar, nor any other existing coin, except the piece of five-francs, has been proposed unconditionally as the basis of an international coinage. The delegates from Great Britain to the international conference suggested the idea of a ten-franc piece leav- ing the value of eight shillings sterling, to serve as a monetary unit, on -the ground that this would be more likely to secure acceptance in Eng- land than the unit of half that value proposed by the conference ; but this suggestion received no support. All the remaining propositions as yet made with regard to the mone- tary unit recognize the necessity of deviating, at least to some degree, from the actual weight and value of any existing coin ; but they all aim at the same time to avoid so large a deviation as to render the entire coinage of the world, or even a great part of it, unavailable for the uses of money. The most noteworthy of these propositions may be enumer- ated as follows : 1. To make the dollar the unit, giving it the weight of 1.63 grammes of standard gold, nine-tenths fine.| 3. To make the dollar the unit, giving it the weight of 1.8-3ds grammes of standard gold, nine-tenths fine,§ * This remark is to be understood of the plan of the Paris conference in full. The adoption of a single standard, and of gold only as the stand- ard, constituted an essential part of this plan ; and to this France herself has not yet acceded. A disposition to accept the five franc gold unit has, however, been manifested by Spain, Sweden, Austria, Roumania, and Greece ; as well as by the nations parties to the monetary treaty of De- cember 33, 1865, to whom, of course, this part of the plan is acceptable. f It is but just to add that these imputations upon the character of the gold coinage of France are said to have been more recently denied by the ofiicers in charge of the French mint in Paris. X Proposition of Mr. George F. Dunning, Sup't U. S. Assay Office, New York City. Letter to Mr. Dubois, U. S. Mint at Phila. Feb. 8, 1868. §P]an of Mr. E. B. Elliott, Am. Assoc'n Adv. Sci., August, 1868. 288 OUTLINES OF AN 3. To take as a unit the value of one gramme of standard gold, nine- tenths fine, to be called a sol, or soldo.* 4. To take as a common measure of value one decigramme of pure gold.f To consider these propositions in their order : In favor of the first, it is urged that it would only require, in the Brit- ish gold coins, a change of 44-lOOths of one per cent., and in the French gold coins, an opposite change of precisely the same small amount, to reconcile them with the Federal coinage ; but the Federal coinage, on the other hand, would require to be reduced 3.1-lOth per cent. It is unfor- tunate also, that the change required by this plan, in French g-old. i.9 iu the direction of increase of weight while the whole mass oi the French coin existing is below standard weight already. The proposer of this |)l.Tii cniisiders it a recommt.'ndal.ioii that it provides a coinage in which the weights are expressed by round numbers of grains ; the unit weight 1.62-lOOths grammes, being the equivalent, within an infinitesimal frac- tion, of 2.5 grains. This relation is, however, unimportant, since it is to be desired that grain- weights shall cease to be used as soon as possible. The second proposition is that which has been adopted in the foregoing Article. Its advantages are, first, that it furnishes a unit bearing n. simple relation to the system of metric weights, but which is yet so nearly identical with the dollar of the United States (about 3-lOths of one per cent, less) as to require no account to be taken of the difference. It presents, secondly, points of near approach to the monetary systems of the nations in every part of the world, whose populations are mppt numerous, and whose commerce, contributes most largely to the increase of the world's wealth. As a unit of account, it is furthermore likely to prove more generally acceptable than the much larger unit pre.sented in the pound sterling, or the much smaller one represented by the franc. And, finally, it is a consequence of the long-continued and extensive use in past time of the Spanish' dollar, with which this unit ia nearly identical, and of the fact that the dollar is to-day the unit actually em- ployed in the commercial dealings of nearly four hundred millions of people, {Dispatch of Secretary Msh, cit.supr.,) that the adoption of tliis coin as the basis of the international monetary system will introduce no novelty, and will, therefore, require but little effort to make the system universally intelligible. The following table has been calculated from data found in the " Cata- logue Offlciel " of the Exposition of Weights, Measures, and Moncyr*. Paris. 1867, and in the Report of the Secretary of the Treasury of the United States for 1867 ; together with information furnished by S. B, Elliott, Esq., Statistican, U. S. Treasury Department. *Mr. Michel Chevalier, in the Journal des Economistes, Nov., 1868, pro- poses a gramme of gold of nine-tenths fine as the unit, or a decimal mul- tiple of the gramme. Dr. William Farr, delegate from Great Britain to tliH Statistical Congress at the Hague, in 186i), in a report made to that Congress, approves this idea, but strongly advocates the decigramme of nine-tenths fine as tlie unit, wliieh he would call the Vintoria. f Projjosition of Secretary Msh, in Circular Dispatch to U. S. Ministers abroad, in 1870. INTERNATIONAL CODE. 289 Relations of the Metric DoTlar to the principal Gold Coins of Europe, America, North Africa and Japan. Country. Coin. Finenees. ITnlted States n «reat Britain France, Muntzvereln. it Spain ® rt a Holland., Portugal . . Austria . . . Denmark . Sweden... BuBsia ... Mexico Bolivia... Scoador,. Brazil. . . . Pern •CMU. ... Ttirkey . . Egypt.... Tunis ■Japan.... BonUe Eagle. Eagle Half Eagle.... BoUar Sovereign Half Sovereign. . . Napoleon Piece of 10 Francs Triple Crown. Crown , Boabloon Piece of 4Escados Pieceof %EecudoB Ten Gulden Bncat Ryder Half Kyder Coroa Bucat Piece 10 Thaler.. Bucat Polou Imperial.. Boublon (new)... Piece 20 Pesos... Boublon Piece4Escudos.. Piece 10 Milreis.. Piece 20 Soles.... Piece 10 Pesos.... Piece 100 Piastres Egyptian Guinea Piece 25 Piastres. Cobang(new).... 900 iVinr 916-7 1000 900, 1000 983 TTTTT 9 1 6_ TTTTnr tio_ 55 ■a 33-436 le-Tis 8-359 1-1 7-' 3-994 11-111 8-387 3-855 1-677 6-729 TTTTO" 89 5 100 9 7 5_ iTnnr 8 8,0 TTTTnr 866 TTTTTTT 87 5 TTTTTO^ 87 TTTTTT 844 XTTTTTT 916 1000 898 ITTTTO- 9 0_ Tini'Tr 9 15 1000 87 5 lOOO WW ■I'd o w °^ 33-436 16-718 8-369 1-672 8-136 4- 6-463 3-2-26 33-333 11-111 8-387 3-355 1-677 6-729 3-817 17-783 3-483 13-281 3-452 6.532 18-099 3-817 33-778 26-967 13-468 8-963 32-192 15-303 7-185 8- 5-008 8- 13-207 3-740 6-887 25'963 32-840 26-068 12-630 9-122 32-120 15-303 7-305 8-302 5-008 5-713 16-666 8-333 1 8-3S3 4-166 6 8 33-333 11 -111 8-333 3.333 1-666 6-666 3-750 10-000 - 5-000 18-333 3-750 13-330 8-760 6-333 25-833 25-838 12-500 9-166 33-333 15-000 7-500 8-333 5-000 5-833 -0-103 —0-052 —0-1 -0-005 +0-197 + 0-' +0-215 + 0-107 0-000 0-000 —0-054 —0-022 —0011 -0-068 —0-067 ! B 9 —0-31 -0-31 -0-31 -0-31 + 2-43 + 2-43 + 3-33 + 3-38 0-00 0-00 -0-64 —0-65 -0-65 ■0-94 —1-78 + 0-234 —0-067 + 0-126 + 0-Q10 — O-054 —0-188 + 0-490 -0-2B5 -0-180 +0-044 + 1-213 — 0- +0-195 +0-031 —0-008 + 0-120 -1-29 -1-78 + 0-95 0-27 —0-85 — 0-50 + 1-49 —0-90 — 1- + 0-48 + 3-77 -1 + 3-67 + 0-37 -0-16 + 2-10 OS'S o o aa 20-00 10-00 6-00 100 5-00 2-50 4-00 2-00 20-00 6-67 5-00 3-00 1-00 4-00 3-25 6-00 3-00 11-00 2-25 8-0O 3-25 3-80 15-50 30-00 15-50 7-50 5-50 30-00 9.00 4-50 5-00 3.0O 3-50 290 OtrTLINES OF AN The third scheme possesses in many respects the advantages of the one just considered, and is also recommended as being in the strictest sense metrical, since it presents the simplest possible relation to the metric system of weights. According to this, the weight of a mass of coin in grammes has numerically the same expression as its value in soldoB. The following schedule shows its relations to various national coins in actual use. Country, Coin. ¥ n £ s-g'g ■S„- 0) o Valne in Dol- lars. (Intema- . ttonal.) United States. ,.. 3 Double Eagles 3 Eagles 100-309 50-154 26-077 5-015 8-136 4-068 6-452 8-226 25-161 18-099 100-000 loo-ooo 6-729 3-817 —0-31 —0-31 —0-31 -0.31 -1-67 -1-67 +0-74 + 0-74 -0-64 —0-55 0-00 0-no +0-81 —1-78 100-00 50-00 25-00 S-OO 800 4-00 6-20 3-25 25-00 18-00 100-00 100-00 6-75 3-75 10-00 5-OD 19-00 26-00 38-00 26-00 12-50 9-16 + 32-00 7-50 5-00 25-00 B-75 100 60 26 6^ 8 4 6X 3« 25 18 100 100 6M 3M 10 ■ 5 19 26 33 26 12X H 32 26 60-00 30-00 (( 3 Half Eagles 4-60 Great Britain . 3DollarP Sovereign France Half Sovereign Napoleon 2-40 3-90 Piece of 10 Francs 3 Doublona Coroa 1-95 15-00 ForlDgal 10-80 Muntzverein..^.. 3 Triple Crowns 9Crowns 60-00 60-CO Holland Gnillaume ,,.,. Ducat 4-05 2-26 t( Ryder. ... 6-00 (( Half Ryder 3-00' 3 Polous Imperial Doublon (new) 19-161 25-963 32-840 96-068 12-630 9-122 32-120 7-305 5-008 24-306 5-713 -0-85 + 0-14 +0-49 —0-26 —1-03 + 0-48 -0-37 + 2-67 —0-16 +0-87 +0-65 11-40 15-60 Mexico Piece 20 Peaos 19-80' Bolivia Doublon 15-60 Ecuador ... . Piece4Escndo8 Piece 10 Milreis Piece 20 Soles 7-50' 5-60 Peru 19-20 Turkey Tunis Piece 100 Piastres Piece 25 Piastres 3 Egyptian Guineas.. .. Cobang (new) 4-50 300 IB -00 Japan 3-45. The proposition of the American Department of State, which makes the- decigramme of pure gold the common measure of value affords the fol- lowing relations, which are here introduced for the purpose of comparisoa: INTERNATIONAL CODE. 291 Conntry. United States, Great Britain. Fiance , Praesia , Anstria MuntzTerein. Bussia Spain Denomination of Money, Half Eagle Sovereign Napoleon Frederick d'or, prior to 1858 Double Bncat Crown „. Half Imperial , iDoublon of 10 Escudos since 1864.. Present weight in decigrammes and decimal fractions of pttre gold. 1 1 o 75-232 75 78-834 73 68-065 58 60-302 60 68-838 69 100-000 100 59-967 60 75-483 75 So?. 0)43 Hi 3 1 — T 1 The objections which may be made to the unit proposed in this Code, are objections which may be urged against the introduction of any inter- national unit of money. They are found in the inconvenience which will be temporarily experienced in those countries in which the change in the standard of value may disturb, to some extent, the adjustment of prices to commodities, and may require special legislation to secure the equitable fulfillment of contracts ; and also in the trouble and expense attendant on the calling in of a coinage which the new system may have rendered un- serviceable. But these disadvantages are inseparable from the nature of the reform itself, whatever may be the special shape in which it comes ; and if the reform is to be accomplished, they must be encountered. No other plan of unification hitherto proposed has j ustified the promise that its introduction could be effected with fewer temporary disadvantage!* than must attend this. WTiat gold coins shall he legal tender. 500. All gold coins, of the value of the dollar, or of multiples of the dollar by the whole numbers, two, five, ten, twenty, or fifty, which may be struck by any nation, and which, in respect to weight and fineness^ shall be originally within the limits specified in arti- cle 503, and shall not have become diminished by abrasion, fraud or otherwise, below the lowest of these limits, shall be a legal tender at their nominal value for payments of any amount in any place within the jurisdiction ' of any of the nations. ' See Title VIIL 292 OUTLINES OF AN Silver coinage. 501, Silver coins of the value of one dollar, or any fraction of a dollar, may be issued to facilitate the minor transactions of business ; and such coins shall be composed of an alloy, consisting of nine parts of pure silver to one part of base metal, and shall have a weight equal to fifteen times the weight, which, under the provisions of this Code, is prescribed for gold coins of the same nominal value, respectively. The present ratio of gold to silver, in respect to value at the mints of the United States, is 14.88 to 1, as between the gold coinage and the frac- tional silver ; and 16 to 1 as Between the gold coinage and the silver dollar. The silver dollar, heing worth more than its nominal value, has nearly disappeared from circulation. The relative value of these metals has largely varied during the last five or six centuries in Europe. Under Henry HI. in England, it stood less than 10 to 1; and at the commence- ment of the coinage of gold under Edward III., in the fourteenth cen- tury, it was about 13-J to 1. {Mr. E. B. Elliott, in Blake's Report on the Precious Metals. Reports of the Am. Oom'rs to Paris Exposition.) To this point it returned, after numerous oscillations, at the commencement of the seventeenth century ; after which time it continued on the whole to increase vintil 1848, when it was 15.83 to 1. This was the culminating pointj- Since the opening of the Californian and Australian gold fields, there has been a slight reaction ; but the effect in this respect of the very large increase in the production of gold, has been much less than might reasonably have been anticipated. Mr. Elliott puts the ratio at present at 15.38 to 1. {Blake's Report, above cited) It is possibly somewhat less. The French mint ratio, in the case of the silver five-franc piece, is 15.5 , to 1. This piece, therefore, has nearly disappeared. The French mint ratio, in respect to the two- franc, one-franc, and fractional silver coins, is 14.38 to 1. The British mint ratio is 14.38 to 1. The ratio, 15 to 1, adopted in this Code, is convenient, and very near the truth ; the error being in favor of the preservation of the coin from the melting-pot. What silver coin shall be legal tender, and to what extent. 502. The silver coins issued under the last article, when the same shall, in respect to weight and fine- ness, be within the limits prescribed in. article 503, shall be a legal tender at their nominal value, in any place within the jurisdiction of any of the nations; in the case of the silver dollar, for pay- ments not exceeding ten dollars ; and in the case of INTERNATIONAL CODE. 293 fractional silver coins, for payments not exceeding five dollars. Limits of variation from standard weigM or fine- ness within wTiidli coins shall he current. 503. In the preparation of the coins authorized by this Code, there shall be allowed a deviation from the standard weight and fineness, prescribed in articles 498, 499 and 501, of the amounts following, to wit : 1. In respect to weight : For gold coins, one one-hundredth part of the square root of the weight expressed in tergrammee. For silver coins, one one-hundredth part of the square root of the weight expressed in pentagrammes.' And the foregoing rules shall be applicable to coins weighed in bulk as well as to single pieces. 2. In respect to fineness : For gold coins ; one part in one thousand. For silver coins ; two parts in one thousand. The rules in regard to tolerance of variations have heretofore been ar- bitrary. The British law makes the tolerance for gold coins two one- thousandths of the total weight ; and for silver coins, four one-thousandths ■of the total weight. (33 Vict. c. 10, § 30.) The amount of deviation from the standard allowed is, therefore, directly proportioned to the weight of the coin. There would be reason in this, if the tolerance were near the turning weight of the balance ; but as it is immensely greater, (say from one hundred to ten thousand times greater,) the toler- ance allowed in large coins should be in much less proportion to the weight than that permitted in small coins. The law of the United States, {Act of Congress of Jan. 18, 1837,) for a ■considerable period of time, allowed the same absolute amount of variation of weight (one-quarter of a grain) for all gold coins ; which was equiva- lent to something less than one two-thousandth partof the double eagle,* and one one-hundredth part for the dollar. At the present time the al- lowance is one-half a grain for the double eagle, eag:le and half eagle, and one-quarter of a grain for the quarter eagle and dollar. {Act of Con- gress, of Mar. 3,1849.) The proportion, therefore, varies from about one one-thousandth (in the ■double eagle) to one one-hundredth (in the dollar). For silver coins, the allowance is one and a half grains on the dollar f and half dollar, one grain on the quarter dollar, and a half grain on the * The double eagle, 516 gr. The eagle, 258 gr. The half eagle, 129 gr. The quarter eagle, 64.5 gr. The dollar, 25.8. f The dollar, 413.5 gr. The half dollar, 192 gr. The quarter dollar, 96 gr. The dime, 38.4 gr. The half dime, 19.3. 293a OUTLINES OF Air lesser coins, varying from one two hundred and seventy-fiftli to aboui one-fortietli. For gold, in masses of one thousand pieces, the allowance- varies from one-seven-thousaudth (for double eagles) to one-twenty- seven -hundredth (for the quarter eagles ; ) and for silver, from one one-forty-three-hundredth (for the dollar,) to one-sixteeu-hundredthffor dimes.) Act of Congress, of Jan. 18,16^1. According to the law of probabilities in respect to the numerical results of experiment or observation, the probable error should vavy as the square root of the total number. If, therefore, a just allowance can be empiri- cally determined for a given coin, the allowance for any number may be readily deduced from the law of the square roots. The same law will also fairly represent the allowance for single coins of different weights, after the proper allowance for one representing the unit of weight shall have been ascertained. The numercial constants introduced into this Article are derived from the determinations of Mr. E. B. Elliott, Statistician of the United States- Treasury. ' The term pentagramme, formed upon the principles of the metric nomenclature, signifies jive grammes. It seems proper to present the ratio of the tolerated variations of, weight to the total weight of the several coins, as the result from the rule laid down in this Article; the corresponding ratios tolerated by the Statutes of Great Britain and the United States having been above given. A formula may be constructed for computing these ratios, equally for gold and for silver at the same time, by taking advan- tage of the convenient circumstances, that, inasmuch as one pentft- gramme is equivalent to fifteen tergrammes, therefore, a gold coin weigh- ing any given number of tergramm.es will have, according to the rela- tion defined in Article 501, the same value as a silver coin weighing the same number of pentagrammes. Then putting W for the weight of a coin, and T for the variation of weight tolerated ; W^ W and T^ T for the weight and tolerance in tergrammes and pentagrammes respectively ; we shall have, in accord- ance with the rule of this Article, — 1 V W| = T,. tlie variation tolerated in gold coins, referred to the tergramme as a unit ; and, 1 . V W = T . ^^ corresponding variation for silver coins, referred to the pentagramme as a unit. Also,- T. T_^Tk^W W, Wp W 100 vw That is to say, the ratio of tolerance to weight, for coins of either gold or silver, is found in dividing unity by one hundred times the square root of the weight ; the quotient being tergrammes in the first instance, and pentagrammes in the second. If we, therefore, piit W=l, the tolerance is one one-hundredth part of the .weight. One tergramme of gold, or one INTEKNATIONAL CODE. 2936 pentagramme of silver, has the value of one-fifth. of a dollar = one franc (international) = l-25tli of a sovereign (international) = twenty cents. The variation of value tolerated by the rule, in a coin of this weight, "would therefore amount to one one-hundreth of twenty cents, or one-fifth of one cent. The variations of weight and value tolerated in coins in which W is greater or less than unity, are given for the cases most likely to occur in actual coinage, in the follo-^ing table ; in Which the weights are to be read as pentagrammes for silver coins, and as ter- grammes for gold coins. WdgM, tolerated variation of weight, and tolerated variation of value in gold and silver coins, as determined by the rule of Article 603 of this Code; compared with the same as fixed by the statutes of Great Britain and the United States. Weight. Tergramraes for gold. Pen- tagrammes for silver. III S a ^ "32.9 K 03 Total variation of value by- Coins. British statute. 0. S. statute. Half Dime = $jlg-(silver).... 0-25 0-006 A so-001 $0-0006 $0-0013 Dime = $^ " ... 0-5D O.0O7 TW-T 0-0014 O-O004 0-0013 Franc = $-1- " .... 1-06 0-01 lufl- 0-002 0-0008 C-0013 KJuarter Dollar " 1'25 0-0112 lA-8 0-003B4 0-001 0-0026 HalfDoUar " .... 2-60 0-0158 168-1 0-0032 0-002 0-00391 Dollar (gold or eilver) 5-00 0*02-24 TST-T 0-00447 (0-004* 10-002+ *0- 00364 +0-0097 Kiliarter Eagle = $2^ (gold).. 12-60 1-0364 363-6 0-00707 0-005 0-0097 Half Eagle = $5 " , .. 26-00 0-05 600 0.01 0-01 0-O194 Eagle = $10 " .. BO-00 0-0707 7 oS - 1 0-01414 0-02 0-0194 Double Eagle = $20 " .. 100-00 0-1 1 0-02 0-04 0-0194 1000 1000 Eagles = $10,000 " .. 60,000-00 2-2361 1 0-447 20-00 1-8605 22361 '"eSi'^H^"™ " •• 100,000-00 3- 1623 1 0-632 40-00 2-t907 3 1 6 a 3 «000 Eagles = $50,000 " •• 250,000-00 5-00 1 1-00 lOO-OO 9-3025 "SOOOO 10,0MDonl,le^^j200_000" .. 1,000,000.00 10-00 1 2-00 400-00 27-9070 ■l * Silver. + Gold. The tolerance of variation in value, as given in the last column but ■one in the above table, is computed according to the British rule, althougli -the coins named are not issued by the British mint. The mint of the United States coins all that are named, except the franc or double dime. The British tolerance for small silver coins is too low, and for large gold ■coins too large. The British statute provides no difEerent rule for toler- ance of single coins, and for coin in masses. Hence the variations in the last four examples in the table are exoes.sive. It will be seen, however, that, by the rule given in this Code, the results are entirely consistent ; and the computed tolerances are quite reasonable, whether coins are con- sidered singly or in bulk. 293c OUTLINES OF AN The exact provisions of the United Stat ation in the weight of masses of coin, are : For Gold. In 1000 Double Eagles (- 516,000 grains), 3 dwt.— Eatio, In 1000 Eagles (= 258,000 " ), 8 '• " In 1000 Half Eagles . (= 129,000 " ), IM'' " Id 1000 Quarter Eagles (= 64,500 " ), 1 " " In 1000 Dollars (= 25,800 " ), M" " lor Silver. In 1000 Dollars (= 412,500 grains), 4 dwt.- In 1000 Half Dollars (=192,000 " ), 3 " In 1000 Quarter Dollars (= 96,000 " ), 2 " In 1000 Dimes (= 38,400 " ), 1 " In 1000 Half Dimes (= 19,200 " ), 1 " statute for tolei'ance of vari- 48 7 lee'S' 1 36 12 90 24 _ 35833 1 64500 12 268T5 ■^5¥ 35800 ■Eatio, -fj^hr^ - 42 96 '7 7 2 _ 1 19200 ~ TST^-'B „ 4 8-1 „ ,2,4 ^ 38400 24 _ 1 TS'swu ~ "sinr 1 1600 'I'he coinage of the Empire of Japan was remodelled in 1870 ; so as, in respect to gold coins at least, to be entirely in accordance with the scheme of international coinage proposed in the title " Money " of this Code, and in 1875, the same system except in nomenclature was adopted in the Ar- gentine Republic. In Japan, gold is made the standard, and gold coins are the only legal tender, except for small sums ; and except also, but only in the open ports, as it respects a coin of silver equivalent to the silver dol- lar ; which in the present state of oriental commerce it seems to be nec- essary to retain. The standard of fineness for the gold coins, and also for the silver one-yen (dollar) is nine-tenths. But the standard of fine ness for the subsidiary silver is only eight-tenths. The yen is the unit of account, and its representative gold coin contains one gramme and a half of pure gold, or one gramme and two-thirds (five tergrammes) iit standard gold ; thus corresponding exactly to the international dollar id' this Code. The following tables exhibit the entire system of llii' Japiinese coiiKH'- as at present established.* Table of the weight of the gold coins. Standard fineness, 0-10. Pure Gold. Standard weight. Tens. Weight in Grammes. Weight in Grains. Weight'in Grammes. Weight in Grains. 20 80 462-97 83H . 514-41 10 15 231 -48 WH 257-20 6 W 115-74 8K 128-60 2 3 46-29 • 3K 51-44 1 1>^ 2815 \% ' 25-72 * For the interesting information relating to this important measure of INTERNATIONAL CODE. 293c? Table tf the svisidiary silver coina. Standard /inenese, 8-10. Pure Silver. Standard weight. Sens. Weight in Grammes. Weight in Grains. Weight in Grammes. Weight In Grains. 50 20 10 5 lo-oo 4-00 2-00 1-CO 154-4 61-76 30-86 15-44 12-5 5-00 2-00 1-25 193-0 ■ 77-2 38-6 19-3 Table of the subsidiary eopper coins. Coins. One Sen Half Sen One Ein Weight in Grammes. Weight in Brains. 7-13 3-66 0-90 110 55 14 Table of the sillier one-yen. Btandard Uneness, 9-10. One Ten. Pnre SUver. Weight in Grammes. 24-260726" Weight in Grains, Standard Weight. Weight in Grammes. Weight in Grains. 26 '956363 " Each kind of the gold coins, namely : Twenty (20) yen, ten (10) yen, five (5) yea, two (3) yen and one (1) yen, among which the last, namely the one yen, is the legal standard, will be the legal tender in all pay- ments to any amount. " Each kind of the silver coins, except the silver one yen, will he subsid- iary coins, and legal tender for the payment of sums not exceeding ten (10) yen in any one payment, whether the payment is made in one of these coins or in several. " Each of the subsidiary copper coins, namely, one (1) sen, one-half (^) sen, and one-tenth ( !_■) of one sen, will be legal tender in payment of sums not exceeding one (1) yen in any one payment. " For the sake of rend,ering facility to foreigners at those ports open to them, and in accordance with the requirement of the traders, both foreign and Japanese, the government will coin the silver one yen and make it monetary reform, instituted with such decision in the newly awakened but eminently progressive empire of Japan, we are indebted to the courtesy of Mr. J. H. Saville, chief clerk of the Treasury Department of the United States at Wa.shington. ■294 OTJTLINES OF Alf useful only for foreign commerce. This silver one-yen will be the legal "tender in payment of local taxes and of import and export duties. It will siiso be the legal tender in any commercial transaction in the open ports. This silver one-yen will, however, not be the legal tender in any other place than the open ports, and will not be used for the payment of in- iemal revenue of any kind, nor will it be lawful currency in the interior ; -though, by mutual agreement, any persons may use it to any amount throughout Japan. In the payment of the import and export duties, the •comparative rate of the gold yen to the silver one-yen, will for the present be this : One hundred (100) silver one-yen to be equivalent to one hundred and one (101) gold yen." Standard weights. "^ 504. Standard weights shall be prepared for testing ihe coins issued by the several mints, including weights exactly representing each of the several gold and silver coins, made by this Code a legal tender in payment of debts. These weights shall be carefully compared and exactly verified by an international commission, com- posed of experts appointed by the governments of the nations parties to this Code, each government appoint- ing at least one and not more that two delegates ; such commission to assemble at a convenient time and place to be agreed upon between the several governments. The weights so verified shall be depositsed in the sev- eral mints, with such provisions for their safe-keeping .as may secure them effectually from falsification, and also, as far as may be, from deterioration by exposure or use. There shall furthermore be made copies of these standard weights for the ordinary uses of the several mints, which copies shall, at least once a year, be carefully compared with the standard weights and duly verified ; and these standard weights shall be used for no other purpose whatever, but to make such comparisons and verifications. Scrutiny of the coinage. 505. At every delivery of coins made by the coining ofiicers of any nation to the public treasury of the same, there shall be taken indiscriminately, by the treasurer or other ofiicer duly authorized, a sufficient number of pieces of each variety of coin delivered, to INTEENATIONAL CODE. 295 be reserved for assay and scrutiny ; ' and the coins so taken shall be carefully enclosed and sealed, with a label stating their descriptions, numbers and value, and deposited in a strong box or safe so secured that it cannot be opened except by the concurrence of the superintendent of the mint and the officer representing the treasury. At a suitable time after the close of the mint operations of each year, the coins so reserved shall be subjected to scrutiny .by a commission of ex- perts to be appointed by the government,' who shall, after thorough examination, make report as to the ■conformity of those pieces to the standards of fineness and weight. Should there be found a deviation from the standards greater than that which is allowed by the provisions of this Code, all officers implicated in the error shall be thenceforward disqualified from holding their respective offices, or subjected to such other penalty as may be provided by the municipal law of the State to which the mint appertains ; ex- cept that, if, in view of the circumstances, it shall appear that the error has not been caused by fraud, neglect, or incapacity, the penalty shall not be in- flicted.' ' Act of Congress, V. S., January 18, 1837, §§ 27, 33. " British Coinage Act, 33 Vict. ch. 10, § 13. ^ Act of Congress, IT. S., January 18, 1887. Coins Tfiay he called in by proclamation. 506. A nation may call in the coins of any date or denomination issued by it ; in which case, after pub- lic proclamation shall have been made of such recall, the coins specified in the proclamation shall cease everywhere to be a legal tender. But in every such case, provision shall be made for redeeming the coins at their actual value, and for furnishing current coin instead thereof, at the capitals or principal financial centres of the several countries within which they have been in circulation. TJncurrent coins Tnay he destroyed. 507. When any gold coin of a denomination made 20 296 OUTLINES OF AN current by the provisions of this Code shall be below the standard weight by an amount greater than the largest deviation allowed by the same, or when any coin shall have been called in by proclamation," it shall be the duty of every person to whom such coin may be tendered in any payment, to cut,, break or deface such coin; and the person tender- ing it shall bear the loss. If any coin cut, broken or defaced, in pursuance of this article, shall prove not to be below the current weight, or not to have been called in by proclamation, the person cutting, breaking or defacing the same shall receive the same in payment according to its denomination. Any dis- pute arising under this article may be determined by a summary proceeding, to be prescribed by each nation for itself.' > British Coinage Act, S3 Vict., ch. 10, § 7. Coins of iase metal not to form a part of the inter- national currency. 508. No coin or token of copper, bronze, nickel or any other base metal or mixture of metals, which may be issued by the government of any nation to subserve the purposes of money, shall be a legal tender for pay- ment of any amount, in any place within the jurisdic- tion of any nation except that by which it was issued. INTERNATIONAL CODE. 297 TITLE XXI. WEIGHTS AND MEASURES. The systems of weights and measures in actual use among different peoples, stand to each other in no simple numerical relations ; and the transformation of values from one of these systems to another, is ordi- narily an irksome and time-consuming operation. No common system couJd therefore be substituted for all these, which would not stand to them or to most of them in the same relation of inexact commensura- bility in which they stand to each other. But there is hardly a transac- tion of practical life into which considerations of weight, or measure, or both, do not enter ; and such is the constitution of the human mind that clear conceptions of quantities of any kind are unattainable, except by reference to unit values, which education or long use has made familiar. It matters not how thoroughly we may have been instructed in the de- nominations of weight and measure employed by other peoples, or how earnestly wemay have endeavored, by the study of their visible types placed immediately before our eyes, to acquire the power of directly conceiving positive values, when expressed in these : experience teaches us that our notions thus acquired continue long to be vague and inexact ; and that, in order to render them definite, intelligible and satisfactory, we involun- tarily seek to transform them, by reductions founded upou relations which, if not true, are at least approximate, into values which long habit has taught us to associate directly with determinate quantities of the ob- jects valued. The substitution, therefore, anywhere, of a new system of weights and measures for the system actually in use, founded as the new system must be, if it is to become a common and international system, upon a basis which will generally bear no simple numerical relation to the basis of the existing system, will impose upon an entire generation such a burden of inconvenience, daily and hourly felt, as to require for its justification very clear demonstration that the advantages to be secured by the substitution are much more than an offset to this very serious in- convenience. And as there are many minds in which considerations of great public benefit, or even of great individual benefit, which is only prospective, will after all weigh little in comparison with a much less amount of present and personal inconvenience, it is inevitable that every proposition for the unification of the systems of weights and measures in use in the world, no matter what may be the basis proposed for the new system, or what may be its theoretic simplicity, will meet with deter- mined opposition in many quarters. But the inconvenience here referred to, which consists in interference with men's established habits of thought, is not the only one which nee- 298 OUTLINES OF AN essarily results from the abrogation of a system of weights and measures after it has been long in use, and the substitution in its place of a new system, even though it be a greatly better one. That inconvenience can be but temporary, and can affect, at farthest, but a single generation. To abolish suddenly the metric system of weights and measures in France, at the present day, would be to compel the French people to pass a second time through the same painful struggle with esfablished associations as that which attended its original introduction. But apart from this, every system of weights and measures long in use becomes inevitably entangled in, or incorporated with, the operations of industry or the material interests of men, to the extent that it couslituteg at length an element in the actual value of many descriptions of prop, erty. The disadvantage which must arise from this source, in case of the abolition of the system, is one of a more permanent, and apart from its permanence, of a more serious nature than any which can spring from the mere violence done to mental associations. The artificial divisions of landed property are among the things least liable to change among men ; and the boundary lines which mark these divisions are naturally expressed, whenever that is possible, in integral numbers of the unit of measure employed. The introduction of a new unit having no simple relation to the first, will make all these values fractional. And the importance of this consideration increases in pro- portion as the dimensions of the divisions are less, and the absolute value of the surface measured is greater. These are the conditions which exist in regard to the real estate of cities, where they are true as well of build- ings as of the ground on which the buildings are erected. Again, the dimensions of railways, and of the locomotives and other rolling stock used in operating them, have been determined in conformity with the existing systems of measurement ; and all these too become fractional numbers when the system is changed. The same thing must occur in every department of mechanical manufacture, where both the objects produced, and the machinery by which they are produced, will cease, with a change of system, to possess dimensions capable of being integrally expressed. When we consider into how many details of man- ufacturing art the exactest measurements enter as elements of vital im- portance, and reflect at the same time what vast sums have been invested in the various forms of mechanical production, and made dependent for their returns of profit upon the stability of existing systems of measure- ment, we shall perceive that the sudden introduction of others, and their immediate extension to every department of industry as well as com- merce, would seriously and injuriously affect some of the most important springs of public and of private wealth. If, however, in view of all the possible consequences which may and must result from the substitution of a system of weights and measures uniform for all nations, in place of the numerous, diverse, and greatly incongruous systems at present in use, it shall appear that there are per- manent and lasting advantages to be secured to mankind by the change, sufficient to outweigh the temporary inconvenience and possible confusion INTERNATIONAL CODE. 299 which it may cause, there can be no doubt that means ought to be talien to insure the introduction of such a system at as early a day as may be practicable with a due consideration for the tenacity with which men cling to established usages, and a due regard to the material inter- ests which are likely to be affected by it. But, supposing the first question to be thus disposed of, and the desira- bleness of a common system of weights and measures for use among all nations to be universally admitted, there remains behind a second ques- tion of hardly less diflBculty, which is to determine among the various systems which may be suggested, that which combines in itself the largest number of practical advantages, and which is therefore intrinsically the best. And here it may be remarked, that many existing systems are so exceedingly bad, so arbitrary in the assumptions of the units upon which they rest, so variable in the absolute values of these units in different provinces or districts of the same countries, and often in their details so inconsistent with themselves, as to call for reform in the interest simply of the peoples who use them, and without regard to the relations of these peoples with contemporary nations. Since, therefore, no system of weights and measures which may be proposed for international use can have any chance of acceptance, unless it shall be in itself very manifestly a good system, it follows that many of the arguments which may be urged in favor of the adoption of an international system, will be arguments of weight in favor of the system itself, independently of its international character. The disadvantages which result from the great number and diversity of existing weights and measures, are too obvious to require extended illustration. They are felt by all men engaged in effecting the world's exchanges, In the oppressive burden of arithmetical computations with which they incumber all their operations. They are felt by statesmen and statisticians in the difficulties with which they surround all inquiries relating to the resources and the wealth of nations. They are felt by en- gineers, mechanical artisans and manufacturers., in the greatly increased labor to which they subject such persons, whenever they seek to inform themselves of the improvements in the sciences of construction, or in the practical arts of life, taking place in other lauds, in order that they may profit by them. They are felt by travelers and tourists, in the obstacles which they interpose to their proper understanding of what they see and hear in regard to the countries which they visit, and the liability to which they expose them, of taking up erroneous impressions, which, through the publication of their observations, are often conveyed to others. And as it respects all historical or archaeological research, not only the diversity of weights and measures existing at present, but the instability of those standards in the past, and the extreme uncertainty which accompanies any attempt to fix their absolute value at any given period of remote an- tiquity, throws around many questions of the deepest interest an ob- scurity which no patience of investigation will ever be able to remove. The desirableness of a uniform system of weights and measures, to be 300 OUTLINES OF AIT used in common by all mankind, is, however, too obvious to admit of any difference of opinion. If between any two individual men, in order to the interchange of material objects, or even in order to the interchange of intelligent thought, it is necessary that there should exist some stand- ard or standards of value recognized by both, the same is true, in a much higher degree, of large communities of men ; and by an extension of the reasoning, the same is just as true of all mankind. It is proper to ob- serve, however, that the same is not just as true of all mankind, except on the supposition that relations of frequent commercial, social or intel- lectual intercourse are established between all the branches of the great human family ; and therefore that it has not had always in the past the same importance which it has in the present; nor has it at this time the same magnitude of importance which it is destined to have in the future. Writers who have endeavored to trace the origin of the weights and measures which we find prevailing among ourselves at the present time, inform us that, in a primitive state of society, men found in the dimen- sions of their own bodies or of its members, the prototypes of their original linear measures. Two reasons conspire to make such a deriva- tion natural. In the first place, the first uses which the uncivilized human being will have for measures, will be for the construction of his habita- tion, of his garments, of the rude implements which he employs to facili- tate his labor, or of the weapons with which he pursues his game. These must of course bear some convenient proportion of dimensions to the person who intends them for his own use. But, in the second place, the idea of an artificial and material scale or rule for the measurement of objects, is one which involves processes of reflection and abstraction which primitive man has not yet learned to use ; while his own person, with its several members, is ever present, not merely as a measure, but as the very thing which is to be accommodated and fitted by means of the earliest constructions for which measurements are made. As in the course of time more numerous comparisons become necessary, the same standards of measurement are naturally applied in making them. In the measurement of distances, another idea suggests itself, equally growing out of the condition and habits of primitive man. Before ujan had learned to subjugate animals to his service, his only means of loco- motion were such as he possessed in common with these ; and in estimat- ing the moderate distances from his dwelling to which his daily walks might extend, nothing could more naturally suggest itself than to count his steps. From this arose the fundamental unit of itinerary measure, which is still more or less employed for rude determinations ; i. e., the pace. In the state of society here supposed, each man will be his own stand- ard. And though the persons of different individuals differ sensibly in dimensions, yet in the transactions which may occur between the mem- bers of a community so rude, these difi'erences will be unimportant ; more especially when it is consindered that no series of successive measure- INTEKUATIONAL COBE. 301 Tnents, made by tlie same individual, by means of a standard so imperfect, are likely to be more tban mere approximations to equality. As civiliza- tion advances, and society becomes more perfectly organized, and ex- changes multiply, and men, looking beyond the mere supply of their •daily wants, aim at the accumulation of wealth, the necessity will be felt ■of greater uniformity and more exactness in measurements, and an arti- ficial and constant standard will, by common consent, be adopted to super- sede the natural and variable one ; but this will still bear tlie same name (the foot for instance) as the standard superseded, and will be designed to represent its average value* Such conventions will at first extend only to limited districts, and different districts will have different artificial •standards, agreeing in name and according approximately, but only ap- proximatly, in value. It is thus that there early originated in different •countries of Europe, and in different provinces of those countries, more "than one hundred different units of measure, all bearing the name pous, pes, pied, pie, pe, fuss, fod.fot, foute, or foot, and all equally signifying tlie •derivation of the measure from the average length of the human foot; a value, however, which in many instances it exceeds, (as in England and the United States,) and in some, (as in Portugal and many of the Italian States,) largely. The greater number of these discordant measures have •disappeared, chiefly in consequence of the extension of the metric sys- tem, which now prevails in France, Belgium, Holland, Italy, Spain, Por- tugal and Greece. Nevertheless, at the Exposition of Weights and Meas- ures in Paris, made in connection with the Universal industrial Exposition ■of 1867, there were exhibited thirteenf units of measure as being then in actual use under the name of foot, (or its equivalent in other lan- guages,) among which where found eight different absolute lengths. The history of the origin of existing weights and measures is interest- ing, inasmuch as it is a part of the history of the human race. But in its bearing upon the question, what ought to be the standards adopted by men in a high state of civilization, it is of no importance whatever. Yet the foot-measure has been strongly advocated in our own time, on the •score that it is a natural measure, suggested by a sort of instinct, which * Instead of being taken at an average value, this unit of linear meas- ure may have been derived from the person of some conspicuous individual. 'Thus the Olympic foot-measure of the Greeks is said to have been taken from the foot of Hercules ; and the French pied du roi should seem from its name to have had a similar origin. We find it also stated that the English yard was derived from the length of the arm of Henry I. in 1101; the length of this measure, previously to the Norman conquest, having been somewhat greater than that of the modern metre. f The measures here referred to were from Prussia, Bavaria, Wurtem- terg, Baden, Hesse, Switzerland, Austria, Denmark, Sweden, Norway, Russia, Great Britain and the United States. The foot-measures of \e report embodies, and presents in a forcible manner, all the material objections which have ever been raised against the metric system ; and in answering him, all other objections are answered at the same time. It is wortTi while now to cite his own personal opinions of the merits of this system, and his hopes as to the future which may yet be in reserve for it, in spite of the (to his view) unpromising aspect of things in his own time. He remarks, " The French system embraces all the great and important principles of uniformity which can be ap- plied to weights and measures, but that system is not yet complete. Con- sidered merely as a labor-saving machine, it is a new power offered to man, incomparably greater than that which he has acquired by the new agency which he has given to steam. It is, in design, the greatest m- mntion of human ingenuity, since that of printing ; but like that, and every other useful and complicated invention, it could not be struck out perfect at a heat. Time and experience have already dictated many im- provements of its mechanism, and others may, and undoubtedly will, be found necessary for it hereafter. But all the radical principles of uni- formity are in the machine, and the more universally it shall be adopted, the more certain will it be of attaining all the perfection which is within the reach of human power.'' By the "improvements," here mentioned as having been made in the system, are intended probably those modifi- cations which were authorized by the law of 1813 — the law which created the ' ' usual system. " Subsequent experience has shown that those modifi- cations were mainly unnecessary ; and that the system, though originally " struck out at a heat," was produced as nearly perfect as any creation of human origin is ever likely to be. The lesson of this experience must be kept still in mind in reading the following glowing eulogy of the system, from another part of the same report : " This system," says Mr. Adams, " approaches to the ideal perfection of unifoi'mity applied to weights and measures, and whether destined to succeed or doomed to fail, will shed unfading glory upon the age in ^42 OUTLINES OF AN which it was conceived, and upou the nation by which its execution was .•attempted, and has been in part achieved. In tlie progress of its estab- ijishment there, it has been often brought in conflict with the laws of physical and moral nature — with the impenetrability of matter, and with the habits, passions, prejudices, and necessities of man. It has undergone various important modifications. It must undoubtedly still submit to .others, before it can look for universal adoption. But if man be an im- provable being ; if that universal peace, which was the object of a Sa- viour's mission, which is the desire of the philosopher, -the longing of the philanthropist, the trembling hope of the Christian, is a blessing *o which the futurity of mortal man has a claim of more than mortal promise ; if the spirit of Evil is, before the final consummation of all things, to be cast down from his dominion over men, and bound in the chains of a thousand years, the foretaste here of man's eternal felicity; then this system of common instruments to accomplish all- the changes of ..social and friendly commerce, will furnish the links of sympathy be- tween the inhabitants of the most distant regions ; the metre will sur- round the globe in use as in multiplied extension ; and one language of weights and measures will be spoken from the equator to the poles." The period thus clearly foreseen, at which all the world, on a subject so nearly afiTecting the daily and hourly iuterests of its inhabitants of every race and country, shall be "of one language and of one speech," T.S certainly much nearer than the eloquent prophet could have antici- pated when these words were written. " Opinion," which he elsewhere says, " is the 'queen of the world," without whose favoring voice no great measure of public policy can be pressed to a successful consummation, has marched with a rapidity which he certainly by no means contem- plated ; so that, already, that uniformity for which he longed, but hardly .dared to hope, except as a crowning glory of the millenium, has been reached by nearly half the population of the civilized and Christian world, and promises at no distant day to prevail universally. In anticipation of the period at which the metric system shall be intro- duced among the peoples by whom it has not yet been received, it be- comes the governments of those peoples to make sucli preparation for the changes which it will bring, as shall prevent the inconvenience and con- fusion which attended its first introduction into France. To this end, first of all, the principles of the system should be thoroughly taught in all the schools for the education of the young. Let but a single genera- tion be thus instructed, and the obstacle to change which has been found in men's inveterate habits of thought, will be practically removed. Let there then be a progressive introduction of the denominations of the system into diflerent branches of the public service successively ; begin- ning with those which concern international relations, as for instance, the collection of the revenue from customs, and the foreign postal and tele- graphic service ; and subsequently advancing to matters of internal ad- ministration, such as the construction of public works, the management .of the navy yards, of the military posts, and of mines operated by gov- INTERNATIONAL CODE. 343 ■ernments, the statements of the census and statistical bureaux, &c. ; so that at length, when the people shall have become sufBciently familiar- ized with the system, by seeing these examples of its application, it may be extended to commerce and to the ordinary affairs of private life. An additional advantage may be secured, by adopting the practice of stating, for a time at least, all quantities or values specified in public documents, in duplicate form ; the first being the metric numbers, and the second the numbers belonging to the familiar system. By means of this expe- dient, every such document will become an educational lesson, and the people will become familiarized with the system almost without knowing it. This is, in general, the plan which, by a unanimous vote of the inter- national conference of weights, measures and moneys, held in Paris in June, 1867, was recommended for adoption to the governments of all na- tions which have as yet taken no steps looking to the introduction of the metric system among them. It is to be hoped that the recommendation will not be permanently disregarded by any. WhUe these pages are passing through the press, there has been re- ceived a compendious treatise on the metric system, prepared by Prof. Leone Levi, of London, Honorary Secretary of the Metric Committee of the British Association, and published in June, 1871, from which are de- rived some additional facts in regard to the progress of metrological reform. The most important of these relates to British Tndia. It is stated that, by an act passed in 1870, with the approval of the home gov- ernment, the kilogramme is adopted as the unit of weight in India, and the metre as the unit of length ; and the Governor-General in Council is •empowered to cause the new weights and measures to be used by any government office or municipal body or railway company ; and to require that, after a date to be fixed, these weights and measures shall in every district be the basis of all dealings and contracts in any specified biisi- nes9 or trade. In Wurtemberg, Bavaria, and Baden, additional progress has been made by laws, initiated or passed in 1868 and 1869, toward the introduc- tion of the metric system in full. In Eoumania, the metric system has been established by law since Jan- uary 1st, 1865. On the American continent the metric system has been established in the Republic of Equador since 1856, and in Peru since 1863. In Vene- zuela, the government proposed to Congress the introduction of the sys- tem as long ago as 1856. From the report of the International Conference of 1867, on weights and measures and coinage, it appears that Turkey has given a metric value to her unit of length, the Turkish archine having been made equal to three-fourths of a metre. Prom Prof. LevSa work, and from other sources, are derived the follow- ing numbers, representing the populations which have adopted the metric 33 344 OUTLIH"ES or AN system in full, and those whicli have adopted metric values for their units. I. Peoples adopting the metric system in full. State. France French Colonies Holland Dntch OolonieB Belgium Spain Spanish Colonies Portugal Italy North German Confeder.. Greece Bonmania British India Mexico New Granada Ecuador Fern Brazil XTraguay Argentine Confederation. CMli 38,067,064 2,921,000 3,638,467 82,458,000 4,839,094 16,642,000 8,030,000 4,349,000 25,527.000 39,910,517 1,348,622 4,605,000 150,767,851 8,218,080' 2,800,000 1,040,000 3,374,000 9,858,000 387,000 1,736,000 1,908,000 Total 336,419,595 1866 1866 186S 1868 1868 1868 1868 1867 1864 18'i7 1866 1865 1858 1867 1869 Popula- tion. n. Peoples adopting metric valves. State. Wnrtemberg. , Bavaria , Baden Hesse Switzerland. . . Denmark . . . Austria Turkey.. ... Total. 1867 1867 1867 1852 1860 185« 1867 Popula- tion. 1,778,396 4,824,000 1,488,000 854.319 2,510,494 2,413,000 34,861,000 36,860,000 84,039,209 m. Countries in which the metric system, is permissive. State. Great Britain. Umted States. Total. 1871 1870 Popula- tion. 31,817,108 88,626,729 70,342,837 IV. In Sweden (population [1867] 4,195,681) and Norway ([1867] 1,701,478 = total 6,897,169) the decimal division has been adopted, without as yet the metric values. As the peoples in the second class above may be regarded as committed to the ultimate adoption of the metric system in full, we may count as already enlisted on this side of the question, a total of about 420,000,000. On the 26th of July, 1871, an act making the metric system of weights and measures henceforth compulsory in Great Britain, was lost by a ma- jority of only five votes in the House of Commons. Abticle 509. The metric system of weights and measures adopted for international purposes. 510. The metric system to be employed in negotiations and in- tercourse between governments. 511. Customs duties to be levied by metric weight and measure, and postal tarifEs to be regulated by metric weight. 513. Standard units of length and of weight. 513. Copies of the standards to be made and carefully pre- served, as standards of verification. 614. Working standards, or standards for daily use, to be con- structed and periodically verified. INTERNATIONAL CODE. 345 Abticle 515. 516. Standard measures of capacity. Certain denominations, not decimally related to the units of length, capacity, surface and weight, to be allowed. The metric system of weights andmeasures adopted for international purposes. 509. All contracts for the purchase of movable prop- erty of any description, and all accounts rendered for the sale or delivery of such property, when the par- ties to the transactions belong to different nations, shall be expressed, as to the quantities specified, in denominations of the system of weights and measures known as the metric system ; and the denominations of such metric system named in the following tables shall be taken as equivalent to the values set opposite to them, in the denominations of the several systems of national weights and measures therein named. Tables exhibiting the Metric Equivalents of the principal Units of Weight and Measure at present in use in the cimlized world. Note. — From these Tables are omitted the names of all countries in which the metric system of weights and measures already prevails. The authority mainly relied on in computing these equivalents has been Alexandek's '^ Dictionary of Weights and Measures" Baltimore, 1850; a work of remarkable comprehensiveness and singular accuracy. Use has also been made of the " iifa2?/?or^5 e^ ^oce^-yerfiowa; du Comite des Poids et Mesures et des Monnaies,''' Paris, 1807 ; and of the '■ Second Beport of the Stand- ards' Commission " of the British Parliament, London, 1869. I. Equivalents of Units of WAght. Country. Non-metric Units in Metric Units. Metric Units In Non-Metric Units. Austria IPfond = 0-560fl4kilog. IPfund =0-600 IPfund = 0-500 " 1 Pund = 0-500 " 1 Pound(avoir.)= 0-45.% " IPfund =0-600 " 1 Pounte = 0-4090 " IPfund =0-600 ISkalpund.... = 0-42614 " ILivre = 0-600 " 1 Poniid(avoir.)= 0-4536 " IPfund = 0-500 " 1 Eilogrami 1 *' 1 " 1 *' 1 '* 1 " 1 '* 1 ** ne — 1-7857 Pf. Baden - 2-noo Pf. - 2-000 Pf. Denmark - 2-000 P. '>reat Britain Prussia Hussia = 2-2040 P. = 2-000 Pf. = 2 -.445 P. Saxony Sweden Switzerland = 2-000 Pf. = 2-353 Sk. = 2-00O L. United States Wurtemberg. .•.••••• = 2-2046 P. = •2-000 Pf. 346 OUTIilNES OF AN n. Equividenta of Unita qf Length, Country. Non-Metric TJnits In Metric Fnlts. Metric TTnitB In Kon-Metric Unite. IFOBS IFUSB IFuss lFo4 IFoot 1 Fuss 1 Sagene IBlIe IFot IPied IFoot IFnsB — 0-316 Metre 1 Metre 1 ** 1 '* 1 ** 1 ** 1 ** - 3-1634 P. -0-300 " - 3-3333 F. — 0-2919 " — 3-4263 P. -0*3139 " - 8-1863 P. GreatBritain. = 0-3048 " — 0-3139 " = 3-2809 P. - 8-1862 P. - a-13353 " - 0-4687 S. Saxony Sweden -0-6665 " - 1-7651 E. - 0-296Q8 " - 3-.S774 P. — 0-3000 " — 3-3333 P. -0-3048 " - 3-2809 P. Wurtemberg. -0-2865 " - 3-4435 P. Itinerary Measures. Conntiy Non-Metric Units in Metric Units. Metric Units n Non-Metric UnltB. Anetria IMeUe = 7-58647 Kilometres .. 1 Kilometre = 0-1318 Meile = 6-05765 Miles-Metric. 1 Mile-Metric = 0-1977 " Baden 1 Meile = 8-8889 Kilometres.. 1 Kilometre = 0-1125 " = 5-9259 Miles-Metric. 1 Mile-Metric = 0-1687 " Bavaria 1 Meile = 7-4269 Kilometres .. 1 Kilometre = 0-1347 " = 4-9506 Miles-Metric. 1 Mile-Metric = 0-2021 " Denmark.... 1 Mill = 7-5316 Kilometres .. 1 Kilometre = 0-1327 Mill = 5-0211 Miles-Metric. 1 Mile Metric = 0-1990 " GreatBritain. 1 Mile = 1-6C93 Kilometres.. 1 Kilometre = 0-6214 MUe = 1-0729 Miles-Metric. 1 Mile-Metric = 0-9331 " PiasBia 1 MeUe = 7-5325 Kilometres .. 1 Kilometre = 0-1328 Meile = 5-0217 Miles-Metric. 1 Mile-Metric = 0-1992 " RnsBla 1 Viersta = 1-06678 Kilometres.. 1 Kilometre = 0-9.374 Viersta = 0-71119 Miles-Metric. 1 Mile-Metric = 1-4061 " Saxony 1 MeUe = 6-7946 Kilometres .. 1 Kilometre = 0-1472 Meile = 4-5297 Miles-Metric. 1 Mile-Metric = 0-2208 " Sweden 1 Mil = 10-6693 Kilometres.. 1 Kilometre = n-09-« Mil = 7-1082 MUes-Metrlc 1 Mile-Metric = 0-1407 " Switzerland.. 1 Liene = 4-8000 Kilometres . . 1 Kilometre = 0-2083 Liene = 3-2000 MUes-Metric. 1 Mae-Metric = 0-3125 " United States IMile = 1-6093 Kilometres .. 1 Kilometre = 0-6214 Mile = 1-0729 Miles-Metric. 1 Mile-Metric = 0-9321 " Wnitemberg. 1 MeUe = 7-4074 Kilometres .. 1 Kilometre = 0-1360 Meile = 4-9383 Miles-Metric. 1 Mile-Metric = O-2025 " III, Sfpiivalenta of Units qflAgvid Capacity. Country. Non-Metric Units In Metric Units. Metric Units In Non-Metric Units. Austria 1 Maas = 1-415 Litres 1 Lltie = 0-7067 M. Baden Bavaria 1 Maas 1 Maaskanne = 1-500 ' = 1-069 ' 1 ( = 0-6667 M. = 0-9355 Msk. Denmark — 1 Potte = 0-966 ' I = 1-0.35S P. GreatBritain. 1 Gallon = 4-6404 ' ( = O-2202 Galg. Pmssla 1 Quart = 1-1448 ' * = 0-873E Qts. = 0-6f05 St. Russia 1 Stofl = 1-6874 • ( Saxony 1 Kanne = 0-9366 ' . = 1-0678 K. Sweden 1 Kanna = 2-6149 ' 1 = 0-3824 K. Switzerland.. 1 Pot = 1-BOOO ' 1 = 0-6667 P. United States' 1 Gallon = 8.7852 ' i = 0-2642 Gals. Wurtemberg. IMaas = 1-8371 ' * = 0-5444 M. INTEENATIONAL CODE. IV. £!gui^alenti of Vhits of Dry CapacUj/, 347 Country. Non-Metric TJnits in Metric Units. Metric Units in Non-Metric Units. Austria 1 Metze = 61-494 Litres 1 Litre = 0-01626 M. Baden 1 Sester = 15-000 1 ** = 0-06667 S. Bavaria 1 Metze = 87-069 1 '* = 0-02698 M. Denmark 1 Skjceppe = 17-393 1 *' = 0-05760 Sk. Great Britain. 1 Bushel = 88-323 1 *' = 0-02763 Bu. Prussia 1 Scheffel = 64-961 1 '* = 0-18190 Sch. Russia 1 Tchetverik = 26-336 1 *' = 0-03947 Teh. Saxony 1 Scheffel = 103-899 1 " = 0-00962 Sch. Sweden 1 Kubikfot = 25-966 1 ^* = 0-38626 Kf. Switzerland. . 1 Quarter = 16-000 1 ** = 0-06667 Q. Dnited States 1 Bushel = 35-238 1 '* = 0-03838 Bu. Wuriembnrg. 1 Simii = 28-152 = 0-04514 S. Measures of surface and solidity are in general derived from the meas- ures of length, and need not be presented here. Agrarian measures con- cern local populations chiefly, and have not an important international interest. Wherever the metric system is introduced, the units of agra- rian measure now in use will, in the course of time, be superseded ; but it is not indispensable that they should be interfered with by legislation immediately. The metric system to he employed in negotiations and intercourse between governments. 510. Tn all negotiations, treaties and diplomatic com- munications of every description, between the govern- ments of different nations, in wHcli it shall be neces- sary to express quantities by weight, or by measures of length, surface, capacity or solidity, the terms of the metric system shall be employed for the purposes of such expression. Customs duties to he levied hy metric weight and measure, and postal tariffs to he regulated hy metric weight. 511. If, among the nations parties to this Code, there be any which shall continue to maints-in their national and non-metric systems of weight and measure for purposes of domestic trade and business, such nations shall nevertheless allow and require customs duties to be levied in their ports of entry by metric weight and measure, and shall conform the tariffs of weights of 348 OUTLINES OF AN mailable matter in their post-offices to the denomina- tions of metric weight. Standard units of length and of weight. 512. The unit of length of the international metric system is declared to be the length, at the temperature of melting ice, of the platinum metre-bar deposited at the palace of the Archives in Paris on the 4thMessidor of the year VII. of the French Republic, by the inter- national committee appointed to fix the length of the definitive metre, and still there preserved. The unit of ■weight of the same system is declared to be the weight of the platinum kilogramme deposited at the Archives on the same occasion, by the same committee. Copies of the standards to he made and carefully preserved, as standards of verification. 513. The governments of the nations parties to this Code shall cause copies of the standard units of length and of weight to be constructed and accurately com- pared with the prototypes in the Archives at Paris, which copies shall be carefully kept in such secure place and in charge of such officers as the several gov- ernments may appoint, to be used at distant intervals of time for the verifications hereinafter described, and for no other purpose. WorMng standards, of standards for daily use, to he constructed and periodically verified. 514. Copies of the prototype standard units shall be also constructed and accurately compared with the standards of verification provided for in the preceding article, 'which copies shall be used in the preparation of subordinate standards to be deposited in the princi- pal towns, provinces or districts of each country, for the comparison and regulation of the weights and measures in immediate use among the people. These copies shall be preserved and used with extreme care ; and at intervals of time to be fixed by law, they shall INTERNATIOITAL CODE. 349 be compared with the standards of verification, in order that any alteration which may have been occasioned by nse may be detected and allowed for. Standard measures of capacity. 515. The metric measures of capacity, being imme- diate derivatives of the linear measures, may be veri- fied by the bulk in cubic centimetres, or the weight in milligrammes, of distilled water which they will hold at a certain temperature. The government of each nation shall establish a system of verification. of such measures, vdth the advice of scientific and practical experts in metrology. Certain denominations not decimally related to the units of length, capacity, surface and weight, to he allowed. 516. It shall be lawful to use, in ordinary transac- tions and descriptions, the following non-metrical de- nominations, with the values severally attached to them : Weights. 1 ounce^=T^ kilogramme^SO grammes. 1 pound=|- ki]ogramme=500 grammes. 1 quintal=100 pouBds=50 kilogrammes. 1 ton^2,000 pounds=l,000 kilogrammes. Measures of Length. 1 foot=10 inches=30 centime bres=3 decimetres. 1 rod=5 metres. Itinerary Measure. 1 inile=5,000 feet=l,500 metres=300 rods. 350 OUTLINES OF AN TITLE XXII. LONGITUDE AND TIME. The use of geographical co-ordinates, for the purpose of fixing the positions of places upon the earth's surface, was first suggested hj Hipparchus.* The method seems to have been first practically applied by Marinus, of Tyre, a, geographer known to us only by the citations of his work in Ptolemy. Claudius Ptolemy, of Alexandria, who flourished toward the middle of the second century of our era, presented, in hi» treatise on geography, a pretty full synopsis of the knowledge of his time in regard to this subject, many of his pages consisting simply of dry details of the latitudes and longitudes of particular places. For lati- tudes, the equator furnishes a natural circle of reference. For longi- tudes, any meridian may serve as a zero ; but in the early history of geographical science, it was thought advisable, and it then seemed pos- sible, to choose such a prime meridian as should allow all longitudes to^ be measured in a common direction. In the time of Ptolemy, the limit of the habitable world toward the west was supposed to lie in the group- of islands called the Fortunate Islands, now known as the Canaries. Through this group he accordingly supposed his first meridian to pass ; but its position was apparently defined only by its presumed distance from Alexandria, so that the meridian of Alexandria must be regarded as his actual meridian of reference. As, in the progress of centuries, geographical knowledge extended and new geographers arose, new meridians were adopted. In the con- struction of maps and charts, it was natural that authors should pass their meridians of reference through well-known places ; as, for instance the capitals, or chief towns of their own countries. The progress of astronomy contributed moreover to the multiplication of meridians of reference, since convenience would suggest that the tables founded on ac- tual observation should be conformed to the local time at the observatory. During what are commonly called the dark ages in Europe, astronomy was cultivated chiefly by the Arabians, ■]■ whose tables, some of them, are- said to have possessed much merit. The first European astronomical tables of importance were those which were prepared in the latter part of the thirteenth century, (published, however, only in 1843,) under the auspices of Alphonse X., King of Castile, and which are known by hi» name. I These werei adapted to the meridian of Toledo. The tables of * Montuda, Histoire des MathemaMques, T. I., P. I., L. 4 ; Delambrt Hist. Astr. Aneienne, T. II., ch. 15. f 3nay. Brit, Art. Astr on. i Montuda, T. I., P. IL, L. I. ; Id., T. IV., P. V., L. 7. INTERNATIOTifAL OODK. 351 Copernicus, in the sixteentli century, were conformed to the meridian of Cracow. These were, somewhat later, improved and republished by Reiuhold, under the name of the Prutenic or Prussian Tables. The Al- phonsine, Copeniican and Prutenic tables were all founded upon aniient and imperfect observations. They were followed by a variety of others mostly deduced from them; but the whole of these were superseded' early in the seventeenth century, by the publication of the famous tables',, called the Eudolphine Tables, in which were presented the results of the'^ long and laborious observations of Tycho Brahe, reduced and arranged by the celebrated Kepler. The meridian of these tables was that of Uranibourg, Brahe's observatory, in the island of Huena. Simultaneously with these, and later, appeared the tables of Longomontanus, (1624,) and of Reiuhart, (1630,) referred to the meridian of Copenhagen ; of Lans- berg, (1633,) referred to the meridian of Goes : of Reinert, (1639,) me- ridian of Pisa ; of Goldmeyer, (1639,) meridian of Nuremberg ; of Bul- lialdus, (1645,) meridian of Uranibourg ; of John Newton, (1657,) me- ridian of London ; of Count de Pagan, (1657,) meridian of Paris ; of Street, (1661,) meridian of London ; of Lever, (1660,) meridian of Rome ; of Wing, (1669,) meridian of Loudon ; of De la Hire, (1687,) meridian of Paris ; of Halley, (1749,) meridian of Greenwich ; of Lacaille, (1758,) and of Lalande, (1759,) meridian of Paris ; and many others. Besides the general tables here referred to, there were published in many places, from a very early period, ephemerides of the movements of the principal heavenly bodies. Mon-tucla* enumerates fifty or more pub- lications of this kind, referred to a variety of meridians, as Vienna, Ulm,. Berlin, Nuremberg, Venice, Bologna, Augsburg, Rouen, Dantzig, Paris, London, etc. These publications were generally intended to cover a series of years, and were not periodical. Others, however, were issued annually, the earliest of which, computed for the meridian of Paris, ap- peared in Paris in 1678, under the name of the " Oonnaissance des Temps." This has since been uninterruptedly continued to the present time. A similar publication, which also still continues, was commenced in Berlin, in 1766, under the title of the " Astronomisches Jahrbuch." Another an- nual of the same character appeared in Vienna, in 1757, and still another, in Milan, in 1775. The annual ephemeris, however, which has had the- widest circulation, and has most largely contributed to the uses of navi- gation, has been the "British Nautical Almanac," which made its first appearance in 1767, under the editorial auspices of the celebrated Mas- kelyne. This is computed for the meridian of the Royal Observatory, at Greenwich. Since about the year 1850, there has been also published an American work of similar character., under the name of the " American Nautical Almanac." In so far as the diversity of the meridians employed in tables, epheme- rides, maps and charts, affects only the convenience of astronomers or scientific geographers, it is a matter of comparatively small importance. In practical navigation, the case is very difiFerent. To the navigator, sim- *Montuda, T. IV., P. V., L. 7. 352 OUTLINES OF AN plicity is of the highest importance; not only because computations at sea should be unembarrassed by any unnecessary multiplication of figures, but because diversity in the expression of th^ positions of the places on the earth's surface, tends to confusion of thought and to pos- sible error. Notwithstanding this, there has hitherto been no successful attempt to establish uniformity in the construction of nautical charts and tables. It is possibly true that the introduction of astronomical epheme- rides into navigation has tended on the other hand rather to promote diversity than to favor uniformity. Until after the discovery of America, geographers seem uniformly to have followed Ptolemy in placing the fiist meridian among the Canaries. And though the Alphonsine Tables re- ferred astronomical time to the meridian of Toledo, yet the same work contained a list of geographical latitudes referred to the original Ptolemaic first meridian. About the close of the fifteenth century, a great impulse was given to ocean navigation by the discovery of the western continent ; and in con- sequence of the establishment by Pope Alexander VI., in 1494, of the famous line of demarcation between the Spanish and the Portuguese — an imaginary line drawn three hundred and seventy leagues westward from the Azores, the geographers and hydrographers of those nations began to adopt the meridian of these islands as the first meridian of their •charts. This is seen in the maps of Juan de la Cosa, given by Von Hum- boldt, in his Examen Gritique — maps constructed abbut the close of the fifteenth century, and dated A. D. 1500. But the exact position of this me- ridian was not determined by local observation. It seems rather to have been deduced by an approximate computation or estimate of its distance west from Lisbon or Cadiz. In progress of time, the English began to use the meridian of London, and later, of Greenwich, and the Freni;li, that of Paris ; while the Dntch, by the advice of their distinguisshed countryman, Simon Stevin, commenced, about 1600, referring their nau- tical longitudes to the Peak of Teneriflfe. During the sixteenth century, also, Gerhard KaufEmann, (Mercator,) the author of the projection which bears his name, and which has been found practically so valuable, placed the first meridian of his charts in the island, Del Corvo, the northernmost and smallest of the Azores, for the reason assigned that the magnetic line of no variation passed at that time through it. The confusion arising out of so great >■ variety of usages began at length to be felt as a serious evil. Cardinal Richelieu, the enlightened minister of Louis XIII., in the early part of the seventeenth century, re- solved to make an effort to bring about a better state of things. He ac- cordingly invited a congress of astronomers and mathematicians to assem- ble at Paris, in the spring of 1630, to agree, if possible, upon a common meridian. As a result of this conference, the island of Ferro, the most southwesterly of the Canaries, was fixed upon ; and a royal order estab- lishing this decision was promulgated in July of the same year.* Unfor- * Oehler's Physiekalisches Worterbueh. Band VI., 1. INTEKNATIONAL CODE. 353 tunately, however, the exact longitude of Ferro, with reference to any point of the continent of Europe, was at that time unknown. The deter- mination of its position was never made by authority ; and at lengtli, in 1724, it was resolved to assume it at 20° West from Paris. Borda and Pingre give the longitudes of the easternmost and westernmost points as 20° 17' and 20° 30'. To name the island, therefore, without naming a specific point in it, was to leave the meridian still unfixed, even had its general position been better known. At any rate, this effort to establish uniformity was productive of no practical result. The absence of any recognized law, or any uniformity of usage on this subject, among navigators, still continuing toward the end of the seven- teenth century, is illustrated by the following passages from the work entitled " L'Art.JVaviger," by Father Dechales, a work mentioned favor- ably by Montucla, (T. I., p. 658,) for its precision and clearness, and which was published in 1677 : " Les Astronomes," says Duchales, ■'prennent ordinairement pour premier meridien celuy du lieu ou ils font leur demaire, et les Pilotes le Meridien du lieu d'ou ils partent. " Les Ancieus Geographes n'ont pas deu prendre pour premier Me- ridien celuy des dernieres terres vers TOrient ; parcequ'ils n'estoient pas a,rrivez jusques au bout de ce cote-la ; qu'a cause la longitude dans le Ciel, se comptant de I'Occident a I'Orient ; cella de la terre se devoit prendre du mesme cote. II estoit done a propos de le placer dans les terres les plus Occidentales. Quelques-uns des Moderues le mettent aux Isles Fortunees, ou a I'lsle de Fer, la plus Occidentale des Canaries. Les autres aux isles du Cap Nord, comme a celle de Saint Nicholas. Mai.'! cette diversity d'opinions est de peu d'importance ; puisque nous pour rons toujours prendre pour le premiere Meridien de nostre Navigation celuy des derniers terres qui nous avons veus, ou le premier Meridien de la carte de laquelle nous nous servent. " Since the perfection of the methods of determining longitudes by lunar observations, and by chronometers, navigators have naturally referred their longitudes to the meridians for which the ephemerides of the sun and moon are computed. Of the nautical ephemerides now pub- lished, the English Nautical Almanac, the American Nautical Almanac, and the Connaissance de Temps are most used. But the American work employs, for all those determinations which concern navigation, the me- ridian of Greenwich; so that if, in the selection of a meridian to be recommended to the acceptance of all the world, we are to limit ourselves to a choice between the meridians already in use, we can not hesitate to give the preference to Greenwich as involving the inconvenience of change to the smallest number. It may be objected that the place of Greenwich on the earth is marked by no great and distinctive physical feature. A feeling that the place of the first meridian should be so distinguished, though it has been always more or less prevalent, has no substantial foundation, either as it respects the usefulness of such a meridian, or the facility of its determination. That an island like Del Corvo is small and isolated, or that a peak like 354 OUTLINES OF AN Teneriffe is prominent and conspicuous, might seem, at first thought, to add something to the claim of such a point to be taken as the origin of longitudes. But to the astronomical observer these circumstances are of no importance. The meridian of his observatory is marked for him by a simple trace ; and this in general drawn upon the surface of an artificial monument. In the selection of a common meridian for the world, there is nothing, therefore, to restrict the most perfect freedom of choice, so far at least as the mere configuration of the earth's surface is concerned. On the other hand, it is in favor of the adoption of some meridian already largely in use, that there are in existence many laboriously pre- pared tables necessary to the computation of nautical ephemerides, con- structed with reference to such meridians, all of which will have to be transformed, if a new meridian is adopted. This circumstance, and the additional one that Greenwich is familiar to a larger number of navi- gators than any other meridian of reference, must be regarded as decisive in favor of that as a common first meridian, unless such a selection should be found to he attended with some countervailing disadvantage thus far overlooked. If such a disadvantage exists, it must spring from the con- nection of longitude with time. The natural day begins at any place at the rising of the sun ; and as the sun is always rising somewhere, the day is always somewhere begin- ning. The'" day of the month" expresses the number of times the sun has risen within the month, up to that day, inclusive. If a given day of any month, say the first of January, begins at sunrise at a given place the same day of the month will begin sooner in absolute time at places east, and later in absolute time at places west. The difference is one hour for every fifteen degrees of longitude, or twelve hours for half the cir- cumference of the sphere. If, therefore, we suppose the first of January to begin for all places east of the assumed place at the sunrise next pre ceding in absolute time the sunrise of the same day at this assumed place, and for all places west of the assumed place, at the sunrise next following the same sunrise, we shall, by pushing the computation half a circle both ways, arrive at the conclusion that, in longitude one hundred and eighty degrees from the starting point, the first of January begins both twelve hours earlier and twelve hours later than the beginning of the same day at that point. This later beginning must be counted the second, if the earlier was the first ; but the same consequence will not follow if the earlier was counted as the thirty-first of December, [n this latter case, the count must be supposed to be changed, from the thirty- first of December to the first of January, somewhere east of the given place, but not so far east as one hundred and eighty degrees. It is then evident that, if there is to be any uniformity i n the regulation of the cal- endar of the month, and any exactness in chronological determinations, some meridian must be agreed upon at which the change of count in the monthly calendar shall begin. Such a meridian will involve to those who live near it the inconvenience that the same natural day will count a unit more in the month to those who live west of it, than to those who live east, though the actual distance between them may be insignificant. And INTEEWATIOlfAL CODE. 355 on this account it is desirable that the meridian thus selected to mark the beginning of the day should lie as far as possible in the open ocean. Now it happens that the meridian opposite to Greenwich fulfills this condition almost as nearly as any which can be selected. It crosses no portion of any continent except the extremity of Northeastern Siberia — an inhospitable region, now peopled by savages, and incapable of ever becomings an important portion of the civilized world. Its course, then, lies among the petty islands of the great South sea ; and it merely touches the eastern angle of New Zealand, the only habitable land of import- ance which it approaches. This meridian seems, therefore, to be very favorably situated to serve the purpose of dividing the days of the cal- endar. The meridian opposed to Hambui-g, or Altona, might possibly be a little more so, since it passes through Behring's Straits, nearly clearing both continents ; and it leaves a larger portion of the Pacific islands to the west. Practically, however, the claims are nearly balanced, and the advantages which Greenwich possesses in other respects have been pointed out above. Though the natural day begins at sunrise, the astronomical day begins at the passage of the mean sun over the meridian of the place ; and the civil day begins twelve hours earlier, or at the inferior culmination im- mediately preceding. Taliing the meridian of Greenwich, therefore, as the first meridian of longitude, it becomes the regulator of time ; so that when the sun passes the Greenwich meridian on a given day, the same day is twelve hours advanced on the west side of the meridian opposite, but has not yet beg^n, and will not begin for twelve hours more, on the «ast side of the same meridian. This explains the provisions of the Code defining the day. Aeticlb 517. The meridian of Greenwich to be the prime meridian. 518. Maps, charts, nautical tables, &c., how to be prepared. 519. Public vessels to be furnished with tables and charts con- formed to the meridian of Greenwich, and required to keep their logs in accordance therewith. 520. The Gregorian style of reckoning to be employed. 521. Of the length of the year, and of leap years. 522. The term " year," in contracts and written instruments, how to be understood. 523. Divisions of the year. 524. The day defined. The mericUan of Greenwich to he the prime me- ridian. 517. In the determination of positions upon the earth's surface, by co-ordinates of latitude and longi- tude, the meridian passing through the observatory at 356 OTJTLIKES OF AN Greenwich, England, shall be taken as the prime me- ridian ; and longitudes shall be reckoned from that, eastwardly and westwardly, one hundred and eighty degrees, to the meridian opposite, or three hundred and sixty degrees, to the same meridian again. And in all legislative, executive and judicial acts, and in public records of every description, in which the posi- tions of places are defined, or limits designated, or boundaries fixed, by means of co-ordinates of latitude and longitude, the longitudes stated shall be the longi- tudes east or west from the meridian of Gf-reenwich ; and when longitudes are given in such documents without specification of the meridian from which they are measured, they shall be understood to be longitudes east or west from the meridian of Grreenwich. Maps, charts, nautical tables, &c. , how to be pre- pared. 518. AH maps, charts, nautical and astronomical tables, and other publications designed for the use of navigators, which may be prepared and put into circu- lation by authority of the government of any nation, shall be conformed, as it respects the reckoning of longitude, to the provisions of the last article. Public vessels to be furnished with tables and charts conforvied to the meridian of Greenwich, and required to Jceep their logs in accordance therewith. 519. All sea-going vessels employed, in any capacity, in the service of any nation, shall be furnished with charts, tables, and such other aids to navigation as may be necessary, prepared as required in article 518 ; and the commanders of all such vessels shall be required, in keeping their logs, to state all their longitudes, determined by observation or computation, according to the values of the same as referred to the meridian of Green- wich. INTEENATIOITAL CODE. 357 The Gregorian style of reckoning to he employed. 520. Time shall be computed according to the Gre- gorian style of reckoning now prevalent in Western Europe and in America, accorduig to which the cur- rent year is the one thousand eight hundred and sev- enty-first since the epoch ; and the first day of Jan- uary of every year hereafter shall be taken to be the first day of the year. Of tlie length of the year, and of leap years. 521. Every year consists of three hundred and sixty- five days, except those whose numerical designations are exactly divisible by four, without remainder, which years consist each of three hundred and sixty- six days ; except that, of the centurial years, or the final years of the successive centuries, only those as to which the number of the centuries completed is divis- ible by four, consist of three hundred and sixty-six days ; and the other centurial years consist of three hundred and sixty-five days only. The length of the tropical year is nearly three hundred and sixty-five days and a quarter, but falls short of this value by a fraction equal to 11'233426 minutes. Julius Caesar, in his reformation of the calen- dar, which took place forty-six years before the Christian era, disre- garded this minute quantity, and treated the year as being equal to three hundred and sixty-five and a quarter days exactly. Each common civil year being thus a quarter of a day too short, the intercalation of an entire day, or four quarters of a day, at the end of every fourth year, was pre- sumed to maintain, with sufficient accuracy and permanence, the adjus't- ment of the equinoxes and solstices to the places which they originally occupied in the calendar. The error of the Julian year produces no very perceptible effect, when a limited period only of years is considered ; but the same is not true when the period extends to several centuries. Eleven minutes are ll-1440ths of a day. In four hundred years this becomes 4400-1440ths of a day, which is equal to three days and one-eighteenth of a day. Or, if we use the more exact figures, given above, the error of the Julian year, multiplied by four hundred, amounts to three days and twelve one- hundredths of a day. The Julian intercalation of one day iu four years, therefore, displaces the equinoxes in the calendar by more than three days in four centuries. At the time of the assembling of the Council of Nicsea, h . D. 335, the vernal equinox fell upon the twenty-first day of March. Toward the close of the sixteenth century, it was observed to fall on the eleventh. ^58 OUTLlDSrES OF AN In the year 1583, Pope Gregory XIII. published the calendar which is known by his name ; in which, by adding ten to the count of every day in every month, from the fourth day of October, in that year, inclusive, •onward, he restored the equinox to the place it occupied in the calendar in the year 335. This was a piece of reformation uncalled for in any in- terest either ecclesiastical or secular, and it had the effect of preventing-, for a long time, the acceptance of his style of reckoning, and what is of more importance, of his rules for maintaining the adjustment of the cal- endar months to the seasons, by the Protestant nations of Europe, and by those adhering to the church of the East. These rules constitute a truly valuable improvement, and their simplicity, no less than their import- ance, would have secured for them universal favor and adoption at a very early period, in spite of the jealousies which were sure to be awakened by anything proceeding from Rome which should bear the appearance or an attempt to dictate to the world, had they not been accompanied by the large and unnecessary change above mentioned, in the- absolute reckon- ing of the day. As things actually fell out, the Italian States (mostly), with Spain and Portugal, adopted the Gregorian calendar from the day (October 4, 1583) named for its commencement, in the Papal Bull. France adopted it two months later, calling the day following the ninth of December, the twen- tieth, and so onward. In the same year, the matter was discussed at Augsburg, in the Diet of the German Empire ; and the Catholic States of Germany adopted the new calendar in the year following.* The Protestant States, however, clung to the old calendar ; and the consequence was that in parts of the country where the population was generally mixed, there arose a good deal of confusion and discord. This state of things continued for more than a century ; but at last the Protestants gave way, and, in the year 1700, the new calendar wag introduced throughout all Germany, the day following the eighteenth of February being called the first of March. At the same time, the new calendar was adopted in Denmark and in Holland ; and in 1701, it was adopted also in the Protest- ant Cantons of Switzerland, the day following the thirty-first of Decem- ber being called the twelfth of January. The increase in count was now eleven days, instead of ten, because the centurial year 1700 had not been reckoned a leap year under the Gregorian system. England accepted the new calendar in 1753, the day following the second of September in that year being called the fourteenth. In the following year, Sweden did the eame, calling the day after the twenty-eighth of February the twelfth of March. The Julian calendar now continues to be maintained only by Russia, and the adherents of the Greek church generally. Since there is no longer any possibility of securing uniformity of practice in the reckon- ing of time, but by universal acquiescence in the Gregorian calendar, it is greatly to be hoped that the enlightened government of the Russian Empire will not long delay the introduction of the desired change among their people. * Bond's Sandy Book of Bates, pp. 18, 19. INTERNATIONAL CODE. 359 The term " year,'''' in contracts and written instru- m,ents, how to he understood. 52 2 . Whenever the term ' ' year " or " years ' ' is used in any statute, deed, contract, verbal or written, or in any public or private instrument whatever, the year intended shall be understood to consist of three hundred and sixty-five days ; the half year of one hundred and eighty-two days ; and the quarter of a year of ninety-one days ; and if within the limits of any period so computed the added day of leap year shall fall, such added day shall not be counted as en- larging the number of days of that period. Division of the year. 523. The year shall continue to be divided, as at present, into twelve months, which months shall retain the names by which they are at present known, and each month shall consist of the same number of days as are assigned to it in the calendars now in use among all Christian nations, viz : January, . . 31 days. June, . . . 30 days. February, . . 28 u July, . . . 31 " in common yrs., August, . . . 31 " or, in leap yrs. , 29 (( September,. , 30 " March, ... 31 u October, . 31 " April, ... 30 (C November,. . 30 " May, ... 31 (C December, . . 31 " And whenever the term "month" shall be used in any statute, deed, contract verbal or written, or in any public or private instrument whatever, this term shall be construed to mean a calendar month, in accordance with the foregoing scheme. In the reformed calendar of Julius Csesar, as originally constructed, tlie months were made to consist of thirty-one days and thirty days alter- nately, beginning with March.* As the common year consists of but three hundred and sixty-five days, the final month of the year, on this plan, falls a day short of thirty days in common years, and contains fully thirty only in leap years. Had the alternation been inverted, making the first month to consist of thirty days, and the second, of thirty-one, and * Bncycl. Brit., Art. Calendar. 84 360 OUTLINES OF AN so on, no montli would ever have fallen short of thirty days, or have ex- ceeded thirty-one. The name of Julius was given to the month Quintilis, in honor of the great reformer. Augustus afterwards gave his name also to the- month Sextilis ; and the Roman Senate, in a spirit of contemptible syco- phancy, stole a day from February, already too short, to add to August, that the month named after the reigning Emperor might not he a less- important one than that which had received its name from his illustrious predecessor. The distribution of the days of the year among the months is, there- fore, at present entirely anomalous. Moreover, the introduction of the- intercalary day of leap year at the end of the second mouth of the year,, rather than at the end of the year itself, is a source of considerable in- convenience, especially in connection with the calendar of the church. The following scheme for the better distribution of the days of the year among the months, and the transfer of the quadrennial intercalation to- jthe close of the year is, therefore, presented as worthy of consideration. The year to be divided into sextilea, each of two months. Each sex- tile to be made up of a first month, of thirty days, and a second month of thirty-one days ; with the exception of the last sextile, in which the- second month has only thirty days in common years, and thirty-one days- in leap years, as follows: First Sextile Second " TMrd (January 30 days. 1 February 31 " (March 30 (April 81 (May 30 (June 31 JBWrtk 8^tUe.Y^l,^:-:yf, ^T- J September 30 " ( October 31 " ( November 30 " .^December 30 " ( Or, in leap year 31 " Mfth Sixth The day defined. 524. In order to prevent confusion of dates, in con- sequence of differences of local times, it is to be under- stood : First, that the civil day shall begin, at each place, twelve hours of mean solar time before the passage of the mean sun over the meridian at that place, and shall end twelve hours of mean solar time after such me- ridian passage. Secondly, that, at the moment of mean solar me- ridian passage at Greenwich on the first day of Jan- uar}^, the day shall be accounted the first day of Jan- uary throughout the world ; it being noon at that nio- ment in the meridian of Greenwich, afternoon through- out all the one hundred and eighty degrees of longi- tude eastward from Greenwich, and before noon, throughout all the one hundred and eighty degrees of INTERNATIONAL CODE. 36] longitude westward from Greenwich ; and the same shall be true for every other day of the year ; that is to say, the moment of mean solar meridian passage at Greenwich shall be that in which the day is of the same name throughout the world, whatever may be the degree of advancement of the day, by local time, in different longitudes. So long as the entire extent of the known world scarcely exceeded lu longitude a third part of the earth's circumference, there was no danger that an error of a day could be committed in assigning the date of an event. Nor was the possibility of such an error considerable even aftei the route to the Indies had been discovered by the way of the Cape of Good Hope. But when the opposite route, by Cape Horn, had been suc- cessfully explored, and the Spanish navigators, who had followed this course, met the Portugese, who had come the other way, in the Philj lippine Islands, it was found that they differed in their reckonings of time by an entire day. So long, however, as the enlightenment of the world was mainly con- centrated in Europe, or extended on the western continent but little be- yond the Atlantic coast, the possibilities of confusion in chronology, for want of a universally received definition of the beginning and- ending of the calendar day, were not great. The case is quite different at present, when the great islands of Australia are occupied by flourishing British colonies, and both shores of North America are peopled by an enterprising race, engaged in prosecuting extensive commercial enterprises in both hemispheres. It is becoming, therefore, a matter of greater importance every day, that there should be established some universal rule for de- fining the calendar day for all the world. The reasons why the meridian of Greenvrich should be fixed upon,«rather than any other, for the pur- poses of this definition, have been already assigned in the Article relating to longitude. 862 OtTTLINES OF ATT TITLE XXIII. SEA SIGNALS. Article 625. A signal code to be devised by an international committee. 526. The use of the international signal code to be enjoined upon all ships, for all communications by signal, except such as may be of a confidential nature. 627. Apparatus and printed instructions required for the use of the international signal code, to be provided. A signal code to he devised iy an international comTuittee. 525. Within one year after the adoption of this Code, there shall be appointed a joint commission of competent persons, to fix npon a common system of signals to be used for purposes of communication be- tween vessels at sea ; such commission to consist of three members from each nation. The use of tTie international signal code to he en- joined upon all sMps, for all communications hy signal, except such as may he of a confidential nature. 526. The signal system, fixed upon as provided in the last article, shall be used in all sea-going ships, public or private, bearing the national character of any of the nations parties to this Code, for all signal com- munications, except those which it may be necessary, in the public interest, to transmit confidentially. Apparatus and printed instructions required for the use of the international signal code, to he provided. 527. Every sea-going ship, public or private, bearing the national character of any of the nations parties to this Code, must, before going to sea, be furnished with INTERNATIONAL CODE. 363 all the apparatus necessary to be used, in tlie employ- ment of the international signal code, for communica- tions at sea ; and also with full and complete printed instructions for the use of the same. All signal codes, whether for sea service or for land service, rest upon the same fundamental principles. A signal is a demonstration of some kind, having a conventional significancy, and designed to assist in con- veying ideas from one person to another. Where distance intervenes between the persons communicating, the signals must be addressed to the eye or to the ear. In either case, a distinction may be made between signals which are momentary or evanescent, and such as may be made permanent for any length of time, at will. To the class of evanescent signals belong most of those which depend on motion. Some such may be seen in common life, in universal use ; as, for instance, beckoning with the hand, nodding or shaking the head, &c.: and, in systematic signal codes, the waving of flags, the flight of rockets,, and the report of fire-arms, possess the same character. Permanent, or more properly, lasting signals are such as remain unchanged to percep- tion during a sensible period of time, which may be protracted at the pleasure of the exhibitor. Examples of these are hoists of flags, or pro- longed blasts of steam-whistles or fog- trumpets, or attitudes assumed by the person himself who gives the signal. The simple motions, sounds or displays employed in signal codes, are called elementary signals. The number of these is, in the nature of things, limited. No code of any comprehensiveness could be formed consisting of uncombined elementary signals only. A few elements will, however, form a very large variety, when they are associated together in groups. Groups of this kind are called combination signals. Such groups may be constructed in several modes ; as, first, by combination proper, where, from a given number of elements, say six, there are formed as- semblages of a smaller number, as of threes, of which no two shall be alike in all their elements ; secondly, by permutation, where the same combination is made to furnish as many signals as there are difi'erent orders of succession in which its elements can be disposed; and thirdly, by arrangement, in which a very small number of elements may be made to furnish a very large number of signals, by repeating one or more of the elements several times in the same signal, and differently disposing the elements among themselves. {Myer's Manual of Signals.) It may be said, generally, that it is not desirable to employ a large number of elementary signals in h. signal code ; also, that the principle of arrangement applied to a few elements will furnish more satisfactory results than permutation and combination only, applied to a larger number. Codes of signals may be formed to signify letters, in which oa"se com- munications may be made in any form of words, as by telegraph ; or to signify numbers, which may then be employed to designate messages previously prepared, and inserted in their order in a dictionary. The ad- 364 OUTLINES OF AW vantage of the first system is, that it leaves communication entirely free ; and that of the second, that it economizes time, by conveying many words through a single number. A complete system should embrace both methods ; the second, for that numerous class of communications the necessity of which is of frequent recurrence ; and the first, for communi- cations the nature of which cannot be anticipated. The dot and line telegraphic alphabet illustrates the advantages of lim- iting the number of elementary signals employed in. any system. By the principle of arrangement, two characters, or, at most, three, (a long line, a, short one, and a dot,) suffice, in that instance, for the construction of an entire alphabet of signals, perfectly distinct from each other, and easily fixed in the memory. This alphabet, in itself, would form an amply sufficient signal code to enable two vessels at sea to communicate with each other, by means of steam- whistles, or by the more or less pro- longed exposure and concealment of any visible object. There are already in use certain signal codes, which have obtained something approaching to an international character. One of these is " The Universal Code," of the late Capt. Marryatt, of the British Royal Navy; another, " The Code International," of Capt. Reynold, of Paris; and a third, " The Commercial Code," of the British Board of Trade. The first and second of these use signal numbers, as ciphers of signal communication ; while the third, or Commercial Code, uses signal letters, permuted in sets of two, three, and four each for the same purpose {Myer's Manual of Signals, p. 51). The code itself consists of words and sentences, classified according to subjects. Signals are shown by the re- quired hoist of fiags, each flag being the recognized symbol of a par- ticular letter. This method originated in 1856, and (as above stated) under the auspice-s of the British Board of Trade ; since which time, it has been gradually introduced into the war and merchant marine of tlie principal maritime nations of Europe. As yet, however, it is but par- tially used in the naval or commercial marine of the United States, al- thougli, by a general order of the Navy Department, the code has been issued to all the vessels of the United States Navy, together with the necessary signal fiags. The system of signals which seems to possess the largest capabilities of usefulness is that which is known by the name of the " Chronosemic Method " of signalling, invented by Benjamin Franklin Greene, Chief Clerk of the Bureau of Navigation, of the Navy Department of the United States. This system consists in employing measured intervals of time as the significant symbols, and using audible or visible signals for the pur- pose only of marking the beginnings and endings of these intervals. Any convenient small interval of time — say one, or three, or five seconds — may be taken as the unit interval! ; then this interval doubled, tripled, quadrupled, and so on, will give the successive additional symbols nec- essary to form the code. This system possesses several advantages. It permits the use of the largest variety of signal apparatus ; since it is a matter of entire indiffer- ence by what means the beginning and ending of each interval is marked. INTEEWATIONAL CODE. 365 ao that the indication is distinct. Thus, for visible signals, by day, the ■exhibition and concealment, or the simple waving, of a flag ; or the substi- tution for the flag of any brilliant or conspicuous object ; or even, at rsmall distances, a gesture of the arm of the signal officer ; or, by night, -the flashing of gunpowder, the ascent of a rocket, or the display and -eclipse of a signal lantern ; and in time of fog, the firing of ship's guns, the blowing of a steam whistle, or the sounding of a trumpet or bugle, may be resorted to equally and interchangeably, as convenience may -suggest. It admits, in the second place, of a very large extension of the circle of available signal distance beyond the practical limit which at present exists; making it possible, for instance, by means of rockets or .guns, to convey messages between vessels separated by ten, fifteen, or •even twenty or more miles. To these advantages it may be added, that the chronosemic method, from the simplicity of sign-making apparatus which it allows, involves a smaller necessary expenditure than any other ; while, for fog-signals especially, it has been found greatly more effective -■than any plan heretofore devised. For these reasons, it should seem to be desirable that, in any system of sea-signals designed for international use, the Chronosemic method, if not adopted to the exclusion of every other, should have an important place. It is better, nevertheless, that the details of the system should be arranged by men of experience, whose practical acquaintance with the merits of different methods entitles them to speak upon the subject with authority, rather than that they should' be fixed by arbitrary legislation. This consideration has suggested the provisions of the text above, which leave the precise form of the international signal code to be settled by a committee of experts. The foregoing remarks apply to signal-systems designed for general or extended communication. Alarm-signals, of which the object is to pre- vent collisions, or to give warning of danger, may be much more simple ; but in order that they may be in the highest degree effectual in securing the safety of vessels at sea, it is important that they should be every- Tvhere the same. In the United States, the Board of Supervising In- spectors of Steamboats have adopted the following rules for fog-horn signals : " Whenever there is a fog, whether by day or night, the fog signals de- scribed below shall be carried and used, and shall be sounded at least every two minutes, viz. : steamships, and all other steamers, coasting and river, under way, shall use a steam-whistle ; sailing and all other craft pro- pelled by sails, under way, shall use a fog-horn, or equivalent .signal ; sailing ships, and every other craft propelled by sails, up Sailing vessels shall at all times, on the approach of any steamer during the night time, show a lighted torch upon that point or quarter to which such steamer shall be approaching ; and upon any craft navigating rivers without being in tow of a steamer, such as rafts, flat boats, wood boats, and other like craft, shall sound a fog-horn, at intervals of not more than two minutes ; and all steamers navigating riverain fog or thick weather, shall sound their steam-whistles, at intervals of not more than ona minute." INTERNATIONAL CODE. 367 PART lY. PROVISIONS FOR THE PRESERVATION OF PEACE. Aeticle 528. Limit of permanent military force. 539. Equipments, and military reserves. 530. ," Time of peace " defined. . 531. When militia may be called out. 532. Notice of dissatisfaction, and claim of redress. 533. Answer to be given. 534. Joint High Commission. 535. High Tribunal of Arbitration. 536. Each nation bound by Tribunal of Arbitration 587. Nations violating provisions to be resisted by all. 538. Annual conference of representatives of nations. 538a. Neutrality of inter-oceanic canal. Limit of permanent military force. 528. In time of peace, the number of persons em- ployed at any time in the military service of a na- tion, whether intended for land or sea, shall not exceed one for every thousand inhabitants. The military establishment of Europe, during peace, has in round numbers, 3,000,000 of men, and when placed on a war footing, it swells to 5,000,000. These men are all withdrawn from industrial pursuits, where they could contribute to the comfort and wealth of manliind. Their support requires the labors of as many more ; so that it may be set down, that the standing armies of that continent impose upon the nations burdens equal to the labors of from 6,000,000 to 10,000,000 of able-bodied inen. The whole population of that quarter of the world is 240,000,000, of which it is computed that one in five is able to do the full day's work of a man: that is, 48,000,000 in all. Therefore, one eighth at least of the flower of Europe is set aside in peace to maie ready for war. This is an unnecessary waste of force. No nation is benefited by it ; all are burdened. The burden can be taken off, by com- mon consent. The only point to be considered is the minimum to which the force can be reduced. A large standing army is not only the enormous burden that it has been described, but it is a provocative to war. The arming of a nation should be looked upon very much as the arming of individuals. A man may keep arms in his house, to be used on occasions, but if he walks 368 OUTLINES OF AN abroad, always armed to the teeth, he speedily gets into a quarrel. So with a nation. The peace of society would certainly he endangered by the general practice of wearing arms. It was once so. And since social manners have been benefited by a general disarmament of individuals, it should seem that, for a similar reason, national manners would be bene- fited by a like process. Examples of partial national disarmament are not wanting. The treaty between the United States and Great Britain, made at the close of the last war between them, stipulated that neither should keep ships of war upon the great lakes that divide them. The treaty of Paris, which closed the Crimean war, provided for the disarmament of Russia, in the Black sea. The object of a military establishment is security, internal and ex- ternal. The standing army of the United States is 30,000, giving one soldier to every thirteen hundred inhabitants. Yet these 80,000 men are scattered over a territory larger than that of any European State, and they have to keep watch of numerous Indian tribes, and to garrison many fortresses ; a greater number probably in proportion to the population than those of any other nation in the world. It is true, that this country has no dangerous neighbors; but if a general disarmament should be adopted, the most powerful European State would hardly be a dangerous neighbor to the weakest. For the purpose of internal security, one armed guardian of the peace to every thousund persons should seem to be sufficient, acting in conjunction with the militia, which should chiefly be relied on for security against internal commotion. The building and arming of fortresses could scarcely be regarded with apprehension, inasmuch as they are defensive. Ships do not,, it is true, fall within the same category, for they may be regarded as movable fortresses, but they are limited in their operations. Xo bind a nation not to build them and lay them up, should not be considered essential to the security of states. Militia should be regarded as the strong arm of nations, both for in- ternal peace and external defense. For the support of the civil powers, in the execution of the laws, no other force is so natural and proper. It is cheap, ready and efficient. For national defense against external attack, it may, upon emergency, be converted into formidable armies. The last war between France and Prussia has shown how powerful a force a citizen soldiery may be made. In France, the national guard has on many occasions been the defender of order. In the United States, the militia has not only supported the civil power in executing the laws, but it has formed the nucleus of an army of volunteers of the most •effective kind. Equipments and military reserves. 529. The last article shall not prevent a nation from building and arming, in its discretion, fortresses and ships of war, or from organizing, arming, and, for not more than one month in each year, drilling all or any" INTERNATIOJSrAL CODR. 3d9 portion of its able-bodied men between twenty and forty years of age, as a force of militia, to be called into active service, according to article 531. " Time of peace ''^ defined. 530. By the "time of peace," mentioned in article 528, is to be understood tbat period during wMch Austria, France, Great Britain, Germany, Italy, Russia, Spain and the United States are at peace with each other. When militia may he called out. 531. Any nation may call its militia into active service to enforce its laws, suppress insurrections against its authority, repel invasions of its territory or execute article 537 of this Code. See Constitution of the United States, Art. I., Sec. 8, Subd. 14. Notice of dissatisfaction, and claim of redress. 532. If any disagreement, or cause of complaint, arise between nations, the one aggrieved must give formal notice thereof to the other, specifying in detail the cause of complaint, and the redress which it seeks. Answer to he given. 533. Every nation, which receives from another, no- tice of any dissatisfaction, or cause of complaint, whether arising out of a supposed breach of this Code, or otherwise, must, within three months thereafter, give a full and explicit answer thereto. Joint HigTi Commission. 534. Whenever a nation complaining of another and the nation complained of do not otherwise agree be- tween themselves, they shall each appoint five mem- bers of a Joint High Commission, who shall meet to- gether, discuss the diflferences, and endeavor to recon- cile them, and within six months after their appoint- ment, shall report the result to the nations appointing them respectively. 370 OUTLINES OF AN^ High Trihu7ml of Arbitration. 535. Whenever a Joint High Commission, appointe(J. by nations to reconcile their differences, shall fail to< agree, or the nations appointing them shall fail to ratify their acts, those nations shall within twelve tnonthvS after the appointment of the Joint High Com- mission, give'notice of such failure to the other parties ' to this Code, and there shall then be formed a High Tribunal of Arbitration, in manner following : Each nation receiving the notice shall, within three months thereafter, transmit to the nations in controversy the names of four persons, and from the list of such persons the nations in controversy shall alternately, in the- alphabetical order of their own names, as indicated in article 16, reject one after another, until the number is reduced to seven, which seven shall constitute the trib- unal. The tribunal thus constituted shall by writing signed by the members, or a majority of them, appoint a time and place of meeting, and give notice thereof to the parties in controversy ; and at sach time and place, or at other times and places to which an adjournment may be had, it shall hear the parties, and decide be- tween them, and the decision shall be final and con- clusive. If any nation receiving the notice fail to transmit the names of four persons within the time prescribed, the parties in controversy shall name each two in their places ; and if either of the parties fail to signify its rejection of a name from the list, within one month after a request from the other to do so, the other may reject for it ; and if any of the persons selected to constitute the tribunal shall die, or fail for any cause to serve, the vacancy shall be filled by the nation which originally named the person whose place is to be filled. Each nation bound by Tribunal of Arbitration. 536. Every nation, party to this Code, binds itself to unite in forming a Joint High Commission, and a High Tribunal of Arbitration, in the cases hereinbefore INTEKNATIONAL CODE. 371 ■specified as proper for its action, and to submit to the •decision of a High Tribunal of Arbitration, constituted and proceeding in conformity to article 535. Nations violating promsions to he resistedty all. 537. If any party hereto shall begin a war in viola- tion of the provisions of this Code for the preservation of peace, the other parties bind themselves to resist the oflEending nation by force. Annual conference of representatives of nations. 538. A conference of representatives of the nations, parties hereto, shall be held every year, beginning on the first of January, at the capital of each in rotation, and in the order mentioned in article 16, for the .purpose of discussing the provisions of this Code, and their .amendment, averting war, facilitating intercourse, and preserving peace. War, in all its aspects, lias little to recommend it, and almost every- "thing to condemn it. Even the brilliant qualities of courage and self- sacrifice, whicli it often calls forth, are more than counterbalanced by the cruelty, license and corruption, which are its inseparable concom- itants. The history of every nation, after a great war, is a history of •demoralization. The moral sense appears to be weakened by the spec- tacle of brute force contending with brute force; the sensibilities are blunted by indiflFerence to suffering, and familiarity with death ; the morals of camps are proverbially loose ; the custom of destruction is apt to beget the love of it ; and that regard for the rights and feelings of -others, which is the chief glory of civilization, is lessened, if not lost, in the struggle for life and mastery in fight. There may indeed be in nations, as in individuals, a stagnation and corruption worse than death ; and war, like pestilence and famine, may be used by the Almighty as a scourge to drive them away, but that proves, not that war is a good thing in itself, but that there may be things that are worse. Contention does undoubtedly sharpen the intellect, but there may be other kinds of contention than that of mere force. Indeed, that conten- tion which aims to overcome obstacles in nature, to outstrip in manly ;arts, to look deepest into the mysteries of the world, material and spiritual ; contention in letters and arts, in poetry, philosophy and his- tory, in agriculture and navigation, in the refinements of life, the cul- -tivation of taste, and the elevation of morals ; that is the contention ■which really purifies and exalts. We see that the waste and destruction of war are by no means the .•greatest of its evils, great as they are. We have before our eyes, at this iinoment, the devastation of one war, which lasted but a few months, but 35 372 OUTLINES OF AN ■wliicli filled Germany with mourners, and covered France with wasted fields, and cities and villages battered and burnt. Half a year of wai caused mor« sorrow and suffering than a century of peace. It is, therefore, to be assumed that any well considered scheme which promises to lessen the number of wars, will receive the countenance of all good men. The scheme of the text is submitted, in the, hope that, if it be npt accepted, it may at least stimulate inquiry, and lead to some thing more acceptable, and more efBcacious in preserving the peace of the world. Whether it be possible to prevent war altogether, is the problem of the future, but it can not be doubtful that the chances and the occasions of its occurrence may be lessened. These articles are framed with that view. They are not the result of mere speculation. Most of them have experience of some sort, greater or less, to recommend them. The rule requiring a statement of grievances to be made out and sub- mitted to the government complained of, and requiring a definite answer, will tend to prevent wanton and unprovoked attack. The rule requiring the creation of a Joint High Commission, which shall at least meet to discuss the differences, and seek to reconcile them, follows the precedent set by the United States and Great Britain, in their manner of treating the Alabama Dispute. The submission to arbitration has already been stipulated in several treaties. It is an eflFectual and honorable mode of settling differences. The manner of selecting arbitrators is suggested by the provisions of the Articles of Confederation of the United States of America, which were as follows : " The United States, in Congress assembled, shall also be the last re- sort, on appeal, in all disputes and differences now subsisting, or that hereafter may arise between two or more States concerning boundary jurisdiction, or any other cause whatever ; which authority shall always be exercised in the manner following • Whenever the legislative or ex- ecutive authority, or lawful agent of any State in controversy with another, shall present a petition to Congress, stating the matter in ques- tion, and praying for a hearing, notice thereof shall be giveh, by order of Congress, to the legislative or executive authority of the other State in controversy, and a day assigned for the appearance of the parties, by their lawful agents, who shall then be directed to appoint, by joint con- sent, commissioners or judges, to constitute a court for hearing and de- termining the matter in question ; but if they can not agree. Congress shall name three persons out of each of the United States, and from the list of such persons each party shall alternately strike out one, the pe- titioners beginning, until the number shall be reduced to thirteen ; and from that number not less than seven nor more than nine names, as Congress shall direct, shall, in the presence of Congress, be drawn out by lot ; and the persons whose names shall be so dra /vn, or any five of them, shall be commissioners or judges, to hear and finally determine the controversy, so always as a major part of the judges, who shall hear the cause, shall agree in the determination ; and if either party shall INTEKNATIONAL CODE. , 378 neglect to attend at the day appointed, without showing reasons which Congress shall judge sufficient, or, being present, shall refuse to strike, the Congress shall proceed to nominate those persona out of each State, and the Secretary of Congress shall strike, in behalf of such party, ab- sent or refusing; and the judgment and sentence of the court, to be ap pointed in the manner before prescribed, shall be final and conclusive; and if any of the parties shall refuse to submit to the authority of such court, or to appear, or defend their claim or cause, the court shall never- theless proceed to pronounce sentence or judgment, which shall in like manner be final and decisive, the judgment or sentence and other pro- ceedings being in either case transmitted to Congress, and lodged among the acts of Congress, for tjie security of the parties concerned; Provided, That every commissioner, before he sits in judgment, shall take an oath, to be administered by one of the judges of the supreme or superior court of the State where the cause shall be tried, " well and truly to hear and determine the matter in question, according to the best of his judgment, without favor, affection, or hope of reward." Why the several provisions of the text, or others of similar purport and design, should not be adopted, and why, if adopted, they should not answer the purposes intended, it would be diflBcult to say. National pride would not be touched, national interests would not suffer. War is a national duel. Private dueling, that is, private warfare, has been either abolished, or reduced to a minimum. If it has been found practicable to make individuals settle their disputes in some other way than by the rapier or the pistol, it is not easy to see why any number of individuals composing a nation should not be brought to do the same thing. 538a. The -canal already made across the isthmus of Suez, and any canal that may hereafter be made across the Isthmus of Panama, shall be deemed neutral territory, in all cases of war between any nations what- ever, and no capture, detention, or injury of any kind shall be made or inflicted by any belligerent upon the ships or other property of any other belligerent, or upon the person of any member of a belligerent nation, ir-ither on the line of the canal, or within sixty nautical miles of either extremity thereof. For a full discussion of the reasons for this article, see a series of papers in the London Hour, by Sir Travers Twiss. DIYISION SECOND. PRIVATE INTERNATIONAL LAW. Pabt v. Pkitate Rights. VI. Adminibtkation of Justice. PART V. PRIVATE RIGHTS. Title XXIV. Condition of Peksons. XXV. Pkopbrty. XXVI. Obligations. The general principles which have been kept in view in framing the Articles of this Division, and which are discussed in more detail in various notes, may be indicated as follows : 1. Bach nation should be allowed to regulate all transactions aflfect- ing the ownership of its own soil. According to some authorities, the capacity of the person, as to taking or conveying, depends on the law of his nationality, — {Falix, Droit Intern.;) but this does not seem reasonable. 2. Bach nation should be allowed to regulate all transactions had within its limits, whether between citizens or foreigners, except such as affect the ownership of the soil of another nation. These principles are commended alike by their recognition of the fundamental doctrine of the territorial sovereignty of nations, by their aflFording individuals convenient means of knowing what the law is to which they must conform in every case, and by their being in harmony in these respects with the progress and tendency of modern jurisprudence. The ancient rule, of oriental origin perhaps, maintains the sovereignty of the laws of a nation over the personal capacity, and, therefore, over the transactions of its own members, even when they are within the ter- ritory of another nation, opposing in this respect the territorial sover 25 376 OUTLINES or AN eiguty of others. This claim, which even the nations asserting it do not reciprocally yield to other nations, has necessarily given rise to much conflict and uncertainty, for it requires that a citizen dealing with a foreigner should ascertain at his peril the fact of the foreigner's alienage, the nationality he bears, and the law of that nationality respecting the personal capacity of the foreigner. The general rule demanded by modern commerce, and which is grad- ually forcing its way into recognition in all civilized countries, is, that contracts, and other acts not affecting the soil of a foreign nation, are valid everywhere, if valid by the law of the place where they are made or are to be performed, subject to certain simple restrictions necessary to guard against the, use of the law of one place to sanction wrongful evasions of the law of another, or to prejudice creditors in another. This is the only rule which alike satisfies the sovereignty of the State, and puts it in the power of every person to ascertain the rule of law to which he is bound to conform. In the application of these principles, it is to be observed that, as to any transaction constituted by several acts done in different jurisdictions, the Code must furnish a test to determine which place shall be considered the one where the transaction is had, and that uniformity of rights and remedies should be secured as far as may be, without respect, to the difference of forum. The exceptions and qualifications of these leading principles are con- sidered as they arise, in the different Articles of the Division. TITLE XXIV. CONDITION OF PERSONS. Chapter XXXVIII. General provisions. XXXIX. Marriage. XL. Guardianship and mental alienations. INTERNATIONAL CODE. 37? CHAPTER XXXVIII. GENERAL PROVISIONS. Aktiolb 539. Liberty. 540. Foreign slaves become free by entering free nation. 541. Rank and social condition. 542. Personal capacity. 543. Exception. 544. Personal capacity as to immovables. 545. Corporate capacity. Liberty. 539. Man is not the subject of ownersMp. Every human being is a person, that is to say, a being ca- pable of acquiring rights and exercising them ; and no one is subject to slavery or involuntary servitude ex- cept in punishment for crime, of which he has been duly convicted. BlwntschK, Droit Intern. Oodifie, § 360; Constitution of the United States, 13th Amendment. As to the duty of nations to persons cominp- within their jurisdiction from states which maintain slavery, see Chapter XXIV. , on the Pkksonal Condition of Foedignbes. Foreign slaves 'become free by entering free nation. 540. Ifi by the law of any nation not a party to this Code, the slavery of human beings is permitted, such slavery is local, and the slaves become free on coming within the jurisdiction' of any free nation, and such nation is bound to respect and defend their liberty. BluntscMi, Droit Inter. Oodifie, §§ 361, 363. ' This, by Article 309, includes the region within the lines of an army or fleet, as it should. Lieber's Instructions, § 3, T[ 48. RanTi and social condition. 541. The privileges of rank or social condition are local, and confined to the places ' within the jurisdic- tion of the nation by the laws of which they exist, and '^78 OUTLINES OF AN aflfect only acts done and rights acquired within such jurisdiction. This article does not apply to the rank or privileges of foreign sovereigns ; ° nor to those of agents of inter- national intercourse ; ' nor to such privileges of foreign rank or social condition as a nation may recognize by special regulation. * ' Tliey are not confined to the territory, but exist in the places which, by Article 309, are subject to extra-territorial jurisdiction. ^ See Article 15, concerning the subjection of the sovereign or chief officer of a nation to the jurisdiction of another nation. = See Chapters XII. and XIII., concerning Public Ministbes and Consuls. * Of course, it is competent for any nation to recognize foreign rank or privilege. Personal capacity. 542. The civil capacities and incapacities of an indi- vidual in reference to a transaction between living per- sons, ' except so far as it affects immovable property, and subject also, in the case of public funds, corpo- rate stocks and shipping, to the provisions of articles 672 and 573, are governed by the law of the place where the transaction is had, whatever may be his national character or domicil, or the place of his birth. This is the American rule, as laid down in the case of Polydore v. Prince, Wwre's Bep., 402, ( U. S. Dist. Ot., Maine, 1837,) on a review of many authorities ; and it is submitted as the plain and reasonable rule, which will solve many vexed questions. See, also. Story, Gonfl. ofL., §§ 79, 83. It is not, however, the rule now recognized by European interna- tional law, although the tendency of opinion is in this direction. The conflicting rules laid down by other authorities upon this point, may be stated thus : 1. The capacity of a person is governed by the law of the nation of which he is a member, even when he is resident in a foreign country. This is the rule declared by the French Code Oivil, Art. 3, as governing the status of Frenchmen, but there seems to be no corresponding rule as to the status of foreigners in France. (Westlake Private Intern. Law, ' p. 381.) It is to be sustained, if at all, by the principle that every nation is the best judge of the capacity or want of capacity of its native sub- jects. But it is a sufficient objection to the recognition of any such ruli in international relations, that, although a nation can within its own ju- risdiction maintain the rule over its members, it woul4 involve grave LNTERNATIONAL CODE. 379 inconveniences to make it reciprocally a rule for nations to apply to all foreigners who may be sojourning within their dominions. See the case of Saul «. His Creditors, 17 Marten's Sep., 596; Lwermore's Dissertation on the Contrariety of Laws. 2. The civil capacities and incapacities of an individual are to be de- termined by the law of his domicil. Woolsey states this to be the rule, and he says, "According to this rule, if a person changes his domicil, he acquires a new jural capacity, by which, in foreign parts, his actions are to be measured. This is true universally, but in many cases the courts of the earlier domicil, especially if it were the person's native country, have shown a leaning, not to be justified, towards holding him under their territorial law." The reasons which justify this principle are, he says, " (1.) That otherwise extreme inconvenience would result to all nations from a perpetual fluctuation of capacity, state and condition, upon every accidental change of place of the person or of his movable property. (2.) That the person subjects himself and his condition, of free choice, to the law of the place where he resides, by removing there or continuing there." In consideration of the great increase of intercourse and the extended and important interests dependent upon the transactions of transitory as well as domiciled foreigners, it seems just to apply more fully the gen- eral principle, that every nation has jurisdiction over all transactions within its territorial limits, and while removing the general disabilities of aliens, as is already done in so many cases by treaty, it should seem reasonable, on the other hand, to subject the transactions of aliens to the regulation of the ordinary local law in all that does not affect the title to immovable property situate in other jurisdictions. The general rule will then be, that, subject to the jurisdiction of each nation over all property within its limits, the efficacy of a transaction de- pends upon the law of the place where the transaction is had. In this respect the force of the observation of Story is admitted, {Gonfl. of L., § 76,) that contracts ought to be governed by the law of the country where they are made, as to the competence of the parties, and as to their validity, because the parties may well be presumed to contract with refer- ence to the laws of the place where the contract is made and is to be ex- ecuted. Such a rule has certainty and simplicity in its application. See, also, Fergusson on Marriage and Divorce, App.,361, cited in Story, Confl. ofL..%91. Story, Gonfl. of L., p. 69, &c., states the following rules as being best es- tablished, or as at least having the sanction of such authority as gives them superior weight in the jurisprudence of Gontinental Europe. i'he acts of a person done in the place of his domicil, in regard to property situated therein, have no other legal effect elsewhere than they hate in that place. Story, § 64.. The personal capacity or incapacity attached to a party by the law of the place of his domicil, is deemed to exist in every other country, as lon^ as his domicil remains unchanged, even in relation to transactions in a foreign country, where they might otherwise be obligatory. This rule is founded, according to Bodeniurgh, upon the inconvenience 38(> OUTLINES OF AN" which would result from a fluctuating rule of capacity upon every ac- cidental change of place of the person or of his movable property. Story, p. 72, § 67. It ought to he observed, however, that the inconvenience of a fluctuating rule is an inconvenience to the individual only, requiring him to ascertain and conform to the law of the place where he may be. It is the most convenient for facilitating commercial transactions and the administration of justice. In case of a change of domicil, these rules would apply in the country of new domicil, and perhaps in every country except that of the original domicil. M., § 70. Story, upon a review of the authorities, conludes that there is no gen- eral rule on the subject admitted by all nations, and that the exceptions conceded by the advocates of the universal operation of the law of the domicil show that no g-eneral rule can be adopted which may not work inconvenience to the interests of some countries, institutions or capaci- ties, and that the conclusion is that no nation is obliged to recognize the foreign law of capacity ; that the place determines the validity of the . act, subject to the right of each nation to refuse to enforce or recognize acts contrary to their laws or policy. For a recent discussion of the doctrine of personal statute and real statute, see Expose critique des principes generaux en matiere de statuts reels et personels d'apres le droit Francais, par F. Laurent, Remie de Droit International et de Legis. eomp., 1869, No. 3, 344. ' Testamentary capacity is regulated by Chapter XLIV. , on Wills. liJxception. 543. No transactipn had by a foreigner, being one be- tween living persons, is voidable on the ground of Ms infancy, except so far as it may affect immovables, if either the law of his domicil, or the law of the place where the transaction is had, sustains his capacity. This is the provision of the Prussian law with reference to foreigners' contracts, stated by Westlake, (Private Intern. L., p. 383,) who recommends a similar provision for adoption in England. It it proposed here, in order to meet the objection, stated by him, and in the case of Saul v. His Credi- tors, {MMarten'a iJ«^.,596, 5 Marten's N. S.,) in Barge's Com. on Golonial Law, p. 133, and other authorities, of allowing aliens who are beyond the age fixed for majority by the local law, to elude the oblifration of con- tracts on the ground of a foreign disability, with which those dealing with them could not be presumed to be acquainted. In re Hellman's Will, (Law Sep., 3 Equity, 368,) it was held, that a legacy bequeathed to an infant domiciled abroad might be paid when the infant came of age by the law of the testator's domicil or by the law of the infant's domicil, whichever should first happen, but in the mean time must be dealt with as an infant's legacy, according to the law of the testator's domicil, although, by the law of the infant's domicil, the guardian would be entitled to receive it. ' The rule is restricted so as not to apply to wills. INTEKNATIONAL CODE. 381 Personal capacity as to immovahles. 544. The civil capacities and incapacities of an in- dividual in reference to immovable property, are to be determined by the law^ of the place where the property is situated. In the conflict of authority among continental jurists on this point, that rule is taken, which is established in England and America, that the territorial laws of each nation must determine the capacity of those who may take or transfer title to lands. See Story, Confl. of L., § 430. For the French doctrine respecting the extent to which the law of the location of immovables regulates the capacity of the person in respect to them, and the rights resulting from transactions in reference to them, see Pcdix, Droit Intern., vol. 1, p. 31. Demangeat is of opinion that, when once it is clear that the law of the place where the immovables are situated does not exclude the foreigner in his quality of foreigner, from the right to dispose of or to receive, thenceforth all questions of capacity or incapacity must be determined according to the rules of law applicable to the person of the foreigner. {Falix, Droit Intern., vol. 2, p. 122, note a.) The objection to the rule allowing the law of the nationality to govern in reference to infancy, is again mentioned under another article. The following modification of this rule is laid down by Story, Confl. of L., § 104 : Personal disqualifications, imposed by the customary or positive law oi the nation of the foreigner, will not be recognized in other countries where the like disqualifications do not exist. Corporate capacity. 545. Corporations and other artificial persons have no existence beyond the jurisdiction of the power by virtue of which they exist, and have no capacity heyond that which is conferred by the law of such power. This is the settled doctrine of the American Law of Corporations, Bank of Augusta v. Earle, 13 Peters' U. 8. Supreme Ct. Rep., 588 ; Ohio & Mississippi R. R. Co. ■». Wheeler, 1 Black, 286 ; County of Allegheny i>. Cleveland, &c., K. R. Co., 51 Pennsyhania Rep., 338 ; and other cases collected in Abbott's Digest of the Law of Corporations, pp. 336, 567. Several, of the French treaties contain a provision to the eflfect that corporations, companies and associations, commercial, moneyed and in- dustrial, as well as jointstock companies and societies of limited liability, formed and authorized according to the laws of either nation, have and may exercise their rights and powers, and may appear in court, whether to institute or to defend actions, in any place within the territorial limits of the other nation, without any other condition than that of conformity to the laws of such nation. 382 OUTLINES OF AN This provision applies as well to such bodies formed previous to th» adoption of the treaty, as those which are thereafter formed. Treaty of commerce and navigation between France and The Free (Sties of .Lu- ) beck, Bremen & Ham- [• Mar. 4, 1865, Art. XVIII., 9 Be Glercq, 187. burg, . ) Grand Dnchy of Meek-" lenburg - Schwerin, — (extended to the) Grand Duchy of Meckleu- bnrg-Strelitz, Turkish and Egyptian business corporations are authorized to exercise their powers in France. 7 De Olercg, 614. See, also, imperial decrees of Februa^Jr 37, 1861, affecting the relations of France, Luxembourg and Portugal. It would, however, hardly be wise to take such a rule as a general one, but better to leave corporations with the powers conferred by the domes- tic law only, except where such special treaties exist. June 9, 1865, " XXI., 9 Id., 295. CHAPTER XXXIX. MARRIAGE. Abticle 546. " Marriage " defined. 547. Valid foreign marriages. 548. Void marriages. 549. Capacity and consent. 550. R.equisite forms. 551. Public ministers and consuls may solemnize marriages.- 552. Criminal oiienses. 553. Evasion of home law. 654. Personal, marital and parental rights. 555. Polygamy. 556. Legitimacy. " Marriage '^ defined. 546. The term "marriage," as used in this Code^ means the union, voluntary and for life, of one man with one woman. Lawrence's Oommentaire sur Wheaton, vol. III. See Hemic De Droit International, &c., 1870, No. 1, p. 53. "Marriage is one and the same thing, substantially, all the world over. . . . We regard it as a wholly different thing, a different status- INTEENATIONAL CODE. 383. from Turkish or other marriages among infidel nations." Lord Brougham, in 'Warrender v. Warrender, 2 Olark & Mnnelly's Sep., 583. The deiiuition of marriage, as understood by the law of nations, given in Rock v. Washington, 19 Indiana (Ken-) Sep., 53, is as follows : Marriage is the union of one man and one woman, so long as they hoth shall live, to the exclusion of all others, by an ol)ligation which, during that time, the parties can not, of their own violation and act, dis- solve, but which can be dissolved only by authority of the State. And it is there added, that nothing short of this is meant when it is said that marriages, valid where made, will be upheld in other States (Citing Noel v. Evans, 9 Indiana, 37 ; Story's Conflict of Laws, ch. 5 Wheaton's Law of Nations, 137.) See Hyde «. Hyde, Law Rep., 1 Probate and Divorce, 130. In this case, the court were in error in supposing, according to the testimony, that a polygamous marriage is valid in Utah. By the act of Congress of 1862, such marriages are illegal. See Lawrence's Gommentaire sur Wheaton, vol. III., quoted in Revue de Droit International, Ac, 1870, No. 1, p. 57. Valid foreign marriages. 547. Subject to the provisions of Part VI., on the Administration of Justice," a marriage, valid ac- cording to the law of the place where it is contracted, is valid everywhere, and the issue of such a marriage is everywhere legitimate. This, in so far as it relates to the form of marriage, is the general doc- trine, supported by all authorities. And it applies as well to transient as to domiciled persons. 1 Bishop on Marriage and Divorce, § 353. By the French law, the rule is modified by the application, together with it, of the principle that the laws concerning the status and capacity of persons, control Frenchmen, even when resident in foreign countries. Falix, Droit International, vol. 2. p. 367. But there is considerable disagreement of opinion as to what excep- tions should be allowed to tliis general rule. The following have each the sanction of some authority : 1st. Polygamous marriages. These are excluded by the definition in Article 546. Such obligations of the married state as it may be proper to- impose upon the parties to a polygamous union, when the case arises in a Christian country, are provided for in Article 555. 2nd. Marriages which are incestuous by the law of the place where they are drawn in question. Ponsford v. Johnson, 2 Blatchford's U. 3. Circuit Gt. Rep., 51 ; Story on Gonflict of Laws, § 87. But Parsons sug- gests, that a question might be made whetlier it would be held incestuous, so far as to avoid the marriage, if the parties were only within the de- grees prohibited by the law of the State in which the question aro. TorJcBep., 438. The dictum of Lord Maksfiuld, in Robinson n. Bland, 3 Burrows Bep., 1077, evidently has reference to the cases provided for in Article 604. So the validity of a voluntary assignment of movables in trust is gov- erned by the law of the place of its origin. Speed v. May, 5 Harris {Pennsylvania) Rep., 91 ; Law v. Mills, 6 Id., 185; but some exceptions have been made, 6 American Law Beg., {N. 8.,) 523. It is not enough that the parties have in view a reference to the law of another State in the formation of their contract ; for, if that were sufficient the statute of usury would in every case at the option of the parties become a dead letter. The rule is that the parties must have a view to the laws of another State in the execution of the contract, and then undoubtedly the contract is to be governed by such foreign law. Kent, J. Van Schaick v. Edwards, 3 Johnson's Case's, {New Torh,) 367. This familiar and fundamental rule is stated by most authorities as a consequence of the independent sovereignty of States, but it has been well expounded in a recent case with reference to the principle which is also essential to it ; that men ought to be safe from civil loss and criminal liability if they conform to the laws of the place where their acts are done. An act to be punishable as an offense must be a crime where it is performed. A person who is about to enter into a contract ought to have an opportunity to take legal advice. This privilege he would be in a great measure deprived of unless he can apply to members ■of the legal profession in the place where the contract is to be made, and they would naturally instruct him in that law with which they are famil- iar. Koster v. Merritt, 33 Connecticut Sep., 346. I^aw governing interpretation of contract. 603. The law intended by the parties to govern the interpretation of any ' stipulation of their contract is deemed to be : 1. The law of any nation named by them for that purpose, as a part of their contract ; or," 2. If no such law is so named, the law of the place- where such stipulation is agreed to be wholly' per- formed ; or,* 3. If no such law or place of performance is speci- fied, the law of the place of making their contract ; ' but in this case a contrary intention may be shown.' ' Where there are several stipulations to be performed in several places, ■the law of the place of performance of one does not govern as to another. Pomeroy «. Ainsworth, 33 Barlour (New Tork) Bep., 138. It seems that English subjects on their marriage may stipulate that their marriage rights shall be regulated by the law of a foreign country ; and the courts of England will enforce such a contract. Bste v. Smith, 23 Law Journ. Chanc, 705. 414 OUTLINES OF AN " It bas been held in Louisiana that a matrimonial contract which would adopt a law foreign to the domicil must set out its provisions, and not merely refer to the law eo nomine. Bourcier s. Lauusse, 3 Martin (Louis- iana) Rep., 581. But a contrary opinion has been expressed in Este ». Smith, 18 Beavan's Hep., 133." (Westlake Private Intern. Law, § 371; citing also, Byam v. Byam, 19 Beavan's Sep., 58.) In Millar ■», Heinrick, 4 Oampbell Sep., 155, a Russian contract for sea- man's wages payable monthly "subject to the deductions provided for by the regulations of the Russian marine " was held to be governed in thai, respect by the law so mentioned. ■•■ Cook V. Moffat, 5 Howard V. 8. Stcpr. Ot. Sep., 313 ; Van Schaick v. Edwards, 3 Johnson's Gases, {New York,) 367. Kent, J. "Cases may be readily conceived where it might be difficult to deter- mine whether the parties had reference to the laws of the place where the contract was made or some other place. ... In such cases it is desirable that the parties should be at liberty to determine by express stipulations made in good faiih by which law the rate of interest shall be governed." Townsend ®. Riley, 46 New Hampshire Sep., 313. " The law of the place," \i. e.ot making,] " can never be the rule where the transaction is entered into with an express view to the law of another country as the rule by which it is to be governed. Huheri Praclecliones,. 1, 3, p. 34, are clear and distinct. Voet speaks to the same effect." " That it was competent for the parties, being citizens of Illinois, to provide by their express agreement that it should be . . . construed by the laws of the State is too well established by authority to admit of doubt." (3 Burrow's Sep., 1077.) Strawbridge v. Robinson, 5 Oilman (Illinois) Sep., 470. Parsons on Notes & Bills. I., p. 57.- It is the frequent practice in America to mention the law by which all questions of interpretation of a contract shall be determined. ^ See, Westlake, Private Intern. Law, nos. 313, 316. A policy of marine insurance made in England, although on a foreign- voyage, i. e., from England abroad, is to be interpreted as to all matters- contemplated in it, as an English contract. Dent v. Smith, Law Sep., i. Queen's Bench, 414 ; and see Peninsular & Oriental Co. ». Shaw, 3 Moore's- Privy Council Sep., (N. 8.,) 878; Hale v. N. .1. Steam Navigation Co., 15- Connecticut Sep., 546-7. See 8tory, Confl of L., § 380, to the contrary. * Story, § 880 ; Penobscot, &c. , R. b. Bartlett, 78 Massaeliusetts (18 Qray). Sep., 848 ; Cox v. United States, 6 Peters' U. 8. Supreme Ct. Sep., 173 ; Bank of United States e. Daniel, 13 Id., 33 ; Bell v. Bruen, 1 Howard U. 8. .8upr. Ct. Sep. , 169 ; Kanaga v. Taylor, 7 Ohio State Sep., (N. 8.) 143 ; Pryor V. Wright, 14 Arkansas Sep., 189 ; Gaylord v. Johnson, 5 McLean TJ. 8. Cire. Ct. Sep., 448; (as to grace,) Bowen v. Newell, 13 N. T. Sep., 390,-. (as to usury,) M'Allister v. Smith, 17 Illinois Sep., 388 ; (as to interest,) Hawley «. Sloo, 13 Louisiana Ann. Sep., 815 ; (as to amount of interest,) Vincent «. Piatt, 81 Georgia Sep., 135 ; 3 Parsons on Notes & Bills, 830 ; Mason v. Dousay, 35 Illinois Sep., 484. ' The rule of comity adopts the law of the country where the contract INTERNATIOISrAL CODE. 415- is made, in determining its nature, construction and validity, unless such construction is contra bonos mores, or against some positive law of the place where the contract is sought to be enforced. Lloyd V. Ginbert, Law Sep., 1 Qiieen's Bench, 115. Forsyth's Gases & Opinions in Gonstitutional Law, p. 339. It can have no validity except conformable to the law where made. The Baltimore & Ohio R. R. Co. v. Glenn, 38 Maryland Sep., 387. No right can be derived under any contract, made in opposition to the law where it is made. 'B.tdl v. Ma\lm, 5 Harris & Johnson(_Maryland) Sep., 193. But where a question arises under the common law or law merchant, the courts of one State will not be concluded as to what the common law rule in such case is, by what the courts of the State where the contract was made have decided in relation thereto. Otherwise if the decision was upon a question arising under some custom or usage of the place where the contract was made. Franklin «. Twogood, 25 Iowa Rep., 530. ' Perhaps other modes of indicating the intent should be allowed to pro- vide for cases like the following : (1) A contract made between foreigners- in their foreign language ; Fmlix, Droit Intern. Prim, vol. 1, 158, d; (3.) A contract, subsidiary or incidental to a foreign right or obligation ; as, a con- tract made by a manufacturer in one country, to supply goods in another to enable the other party to fulfill a contract to be performed in a third country ; or a contract in one country to give a release in another from a foreign obligation, which would mean a release good by the foreign law ; or, a contract in A. to make another contract in B. for doing an act in 0. ; (3.) A contract where the subject relates locally to a foreign country. Rob- inson V. Bland, 3 Burrows Rep., 1078, 1079. Illegality of contract. 604. A contract, wherever made or to be performed, wMch is forbidden by an express ' provision of the law of any nation within whose jurisdiction it is agreed to be- wholly or in part performed," is unlawful every- where, ° so far as relates to the prohibited performance. ' " What is injurious to the rights of the citizens where the property is situated should be the subject of positive legislation, and not left to the discretion of the courts : (Story, Gonfl. of L,, § 390 :) and so are the au- thorities generally in the United States, although the rule is somewhat more broadly expressed. Zipsey v. Thompson, 1 Ora.y (Massachusetts) Rep., 343 ; Vernam n. Camp, 1 Oreen (New Jersey) Rep., 336 ; 3 Mason, IT. 8. Oirc. Gt. Rep., 157 ; 5 Oreenleaf, 345 ; Oliver «. Townes, 3 Martin (Lousiana) Rep., 97; Guillander v. Howell, 35 New York, 657. An express provision of law that a voluntary assignment in trust made abroad, of a debt, due by a resident, shall not be effectual in the debtor's" residence unless recorded there, as against a bona fide subsequent pur- chaser, will render the assignment invalid to that extent. Philson v. Barnes, 50 Pennsylvania State Rep., 330. 416 OUTLINES OF AN ' Story, Confl. of L., § S44, 32 ; Varnum«. Camp, 1 Qreen {New Jersey) Sep., 326. ' 1 Falix Droit Intern. Privi, p. 236. (Citing Pothier des Assurances, No. 58, and note (a.) by Bemangeat.) Other authorities make the con- tract unlawful only in. the courts of the nation whose law is violated. The same. 605. A contraet, wherever made or to be performed, which is made with the intent to violate an express provision of this Code, or of the law of any nation a party to this Code, is unlawful everywhere. Westlahe on Private International Law, §§ 196, 200 ; Banohor %. Mansel, 47 Maine (3 Hubbard) Sep., 58. Mode of charging parties to negotiable instrument. 606. Except as otherwise provided in Chapter XLVIIa, the holder of a negotiable instrument, at its maturity, may charge any other party thereto by per- forming the act required by the law either of the place where it is payable, or of the place where the party, sought to be so charged, contracted ; and every party other than such holder may charge any of his prede- cessors by acting according to the law of the place where his own contract was made, or where the instru- ment is made payable. Tl»e rule stated in the test was applied in Hirschfeld v. Smith, 35 Lain Journ. {N. 8.) G. P., 177 ; Law Mep., 1 0. P., 340, in the case of an in- dorser, as well on the previous authority, as on the ground that notice re- quired by the law of the place of payment must be deemed reasonable. " The inconvenience would be great if the holder was bound to know the place of each indorsement and the law of that place relating to notice of dishonor, and to give notice accordingly." Parsons (2 Notes c6 Bills, 341, note) confirms this view, and further says : that, as the indorser must have intended tliat the protest should be made by a notary of the place of dishonor, it must have been also understood that the notary should act according to his own law. Besides this, a notary, though knowing the place where an indorsement was made, might not be able to ascertain the requirements of the law of that place. The weight of American authority, liowever, is in favor of the place of perfecting the indorsement. In New To7-k,in Aymar«. Sheldon, 13 Wendell {New York) Bep., 489, an indorser there of a West India bill, drawn on France, was held liable on its non-acceptance, although the French law would not make him liable until non-payment. So, as to the necessity of giving notice of pro- test, see Artisans' Bank v. Park Bank, 41 Barbour {New York) Bep., 599 : or ■of exhausting the remedies against the maker, Lee v. Sellick, 33 New York Bep., 615 ; see also Short v. Trabue, 4 Metcalfe {Kentucky) Bep.. 299 ; Kosa INTERNATIONAL CODE. 417 e. Park Bank, 20 Indiana Eep., 94; Raymond v. Holmes, 11 Texas Hep., 54. By the present rule, where a bill is drawn in one state and indorsed in another, and accepted and dishonored in a third, the rights of the holder can only be secured by a compliance with the laws of the three, and so as to every other foreign and independent state. Thorp v. Craig, 10 Iowa (.3 Withrow) Sep., 461. See further on this head articles 630, a, and followihg. SECTION II. PLACE OF MAKING CONTRACT. Akticlb 607. " Place of making contract " defined. 608. Contract made by several parties in different places. 609. Special agreement as to place of consummating contract. 610. Presumed place of making contract. 611. Implied contracts. 613. Presumption as to place of indorsement of negotiable paper 613. Estoppel. " Place of making contract " defined. 607. The "place of making" an express contract, within the meaning of this Code, is the place where the intention of the party, to whom the offer to'con- tract is made, is first completely ' manifested, as fol- lows. 1. If manifested by sending a written or oral state- ment of such acceptance to the party making the offer, at the place from which the statement is sent ; ° 2. If manifested without a statement of acceptance, either by performing the essential terms of the offer, or by receiving the consideration offered, at the place where such performance or receipt occurs ; ° 3. If manifested through an agent authorized by the party to whom or in whose favor the offer is made to bind him by declaring the intention of such agent ' to accept it, at the place where the agent makes such declaration. ' ' Where a preliminary chaffering in North Carolina was followed by delivery of the money lent, and receipt of the note therefor, both occur- 418. OUTLINES OF AN ring in Georgia, the contract of loan and note were held to be made in Georgia. Davis i>. Colman, 11 Iredell {North Carolina) Sep., 308. Gase» and Opinions in Constitutional Law, by Forsyth, p. 2i4. The place of delivering an indorsement written elsewhere is the place of making it. Young ■■». Harris, 14 B. Monroe {Kentucky/) Bep., 559 ; Pine «. Smith, 11 Gray (Massachusetts) Rep., 88. ^ In Parlien v. Royal Exchange Ass, Co., 8 Session Cases, 8nd /Series, 373, a life insurance policy was applied for by a domiciled Scotchman on the life of another Scotchman. The application was made by him in Scot- land to the defendant's agent there. The defendant sent the desired policy from its head office in London completely executed to its Scotch agent for delivery in Scotland to the applicant, which was done, the agent not doing or being authorized to do anything else to bind the company. The court held tliat the acceptance of the offer to contract was made in England ; that the delivery of the policy in Scotland was not a new offer made there, but the completion of the notification of an acceptance made in England ; and that the implied authority of its agent in Scotland to withliold delivery there, if anything material had come to his knowledge, (p. 371,) did not change tlie place of making the contract from England to Scotland. A similar state of facts arose in Wright ». Insurance Com- panies, 6 Am. Law Register, 489, and was decided in the same way. ^ If goods are sent by the seller in one state to the , purchaser in an- other, in pursuance of an order, the purchrser's contract to pay is deemed made where accepted by dispatching the goods. Woodbridge «. Allen, 53 Massachusetts Rep., 470 ; Kline v. Baker, 99 Id., 355. So, goods sent by a principal from a place where his agent to procure orders only has sent him such an order, is made at the place whence the merchandise, not the order was sent. Woolsey v. Bailey, 7 Woster {New Hampshire) Rep., 317 ; Smith v. Smith, 7 Id., 344. ■* The distinction between a messenger and an agent in the strict sense, is that while each of them communicates a declaration of intention mean- ing to bind not himself but his principal, yet it is only the agent who declares what his own will is. The messenger declares what his sender's will is. Wiiidseheid Paiidekten, I., § 73. ' Westlake, Private Intern. Law, §§ 313, 331 ; 1 Fcelix, Droit Intern, PrivS, § 105, p. 344. Thus a life insurance policy was applied for in Illinois to the agent there of a New York company, sealed by tlie company in New York, but condi- tioned not to be binding until countersigned by the Illinois agent and the premium paid to him. The place of making the contract was held to be Illinois and not New York. Pomeroy i>. Manhattan Life Insurance Co., 40 Illinois Rep., 898 ; Heebner ■». Eagle Ins. Co., 10 Oray {Massachusetts) Rep., 131 ; Daniels v. Hudson River Ins. Co., 13 Cushing {Massachusetts) Rep., 433, 433. The contrary was held in Huth v. New York Mutual Ins. Co., 8 Bosworth {New York) Rep., 551. Contract made by several parties in different places. 608. Where the same offer to contract is accepted by several persons in different places, the contract of INTERNATIONAL CODE. 419 each is perfected where the last acceptance is com- pletely manifested, as provided in article 607. fecial agreement as to place of consummating con- tract. 609. The parties to a contract may expressly agree that their contract shall be deemed to be perfected at any place where a specified act or event occurs, al- though by the provisions of the last article, it would not have had that effect. Thus, if it is agreed that an insurance contract shall commence as soon as an order therefor is accepted by the company's agent, the contract ia made at the place where the agent accepts, although the principal's stamped policy is executed elsewhere. St. Patrick Assurance Co. o. Breb- ner, 8 Session Cases, 1st Series, 51. Presumed place of maJcing contract. 610. Where the place of making a contract is not shown, it is presumed to be within the exclusive juris- diction of the nation in whose tribunal it is sought to be enforced. Thatchers. Morris, 11 New York Rep., 439, 440. Implied contracts. 611. The place of making an implied contract is, that, where the act is done which gives rise to the im- plication. An implied contract to repay a loan arises where the loan is made. Suydam e. Barber, 6 Duer {New Yorh) Sep., 34. So whether any, and what implied promise arises from services ren- dered. Brackett v. Norton, 4 Oonnectieut Sep., 530. Presumption as to place of indorsement of negoti- able paper. 612. An indorsement of a negotiable instrument, which does not specify a place where the indorsement was made, is conclusively presumed in favor of a holder, without notice of the place where it was in- dorsed, to have been made where the instrument pur- ports to have been made. The indorser is the drawer of a new bill, and contracts where he in- ■dorses, not where the drawer or maker contracted. Story, Oonfl. of L., §§ 307, 314; Parsons on Notes & Bills,!., p. 651; contra, Pardessus Droit •Commerciale, p. 17, tit. 7, ch. 3, art. 1500. 420 OUTLINES OF AN Estoppel. 613. Where a party to a contract induces a person to act, on the belief that it was made at a particular place, it is deemed as between them to have been made at that place, if such person would be prejudiced by ap- plying the provisions of this Section, to such contract. Thus a bill dated in Pennsylvania and drawn on London was trans- mitted before negotiation to the drawer's agent in England where it was negotiated, without notice that it had its inception in England. It was A«M, that the drawer had expressly agreed that it should be negotiated as a bill drawn in Pennsylvania, and not as a bill drawn in England. Lenningj) Ealston, 33 Pennsyhania Rep., 137; 1 Pwraons on Notes <& Bills, 57. To the contrary, see Steadman v Duhamel, 1 Common Bench Sep., 888 ; 1 Parsons, supra, 57, contra. SECTION III. FORMALITIES. Abticlb 614. What law determines the existence of contract. 615. Several parties. WTiat law determines the existence of contract. 614. The formalities requisite for the making of a contract are those, and those only, which are prescribed by the law of the place where it is made. Story Gonfl. of L., %% 260-263. Westlake, Private Intern. L., §§ 171, 173. He adds as a doubtful prop- osition that the law existingatthe placeof the contract by which a certain description of evidence is made necessary to support an action, is equiva- lent to one requiring certain solemnities as preliminary to the contract. If a contract is void by the law of the place where made, unless written on stamped paper, it is so everywhere. Satterthwaite «. Doughty, Busbee's (North Carolina) Law Sep., 314. So a conveyance in trust of movables is governed as to its form by the law of the place making it. Wilson v. Carson, 13 Maryland Sep., 54. So a mortgage of movables valid as to its form where executed, is valid everywhere, even after a removal of the property. Ferguson v. Clifford, 37 New Hampshire Rep., 56 ; Jones v. Taylor, 30 Vermont Rep., 42. In some reported cases, the law of the place of performance is held to govern as to form. Thus, by the common law the place of performance of a contract to pay money, no place being named, is any place within the country. Such a contract, made in New Jersey, by a resident of that ♦ INTERNATIONAL CODE. 42 L State, with a resident of another state, no place of performance being ex- pressed, is to be performed in New Jersey ; and its law was lield to govern as to form. AUshouse v. Ramsay, 6 Wharton, {Pennsylvania,) Sep., 334. Several parties. 615. If there are several parties to the contract, the formalities demanded by the law of the place where each one engages are necessary and snfiicient in respect to the obligation imposed thereby upon himself. This rule is laid down with some qualification by Westlake, adding that when a contract to which there are several parties is manifested by a single instrument, the necessary form of that instrument, is determined once for all by the law of that place where it begins to have an operation. The illustrations to which lie Tefers are all cases of negotiable paper ; in which cases, although it is true, that for the purposes of transfer it may be proper to determine the effect of an indorsement, as fulfilling the con- dition of the promise to pay to order, by the law of the place where the promise to pay was to be performed, (Everett v. Van Doyes, 19 Sfew York Rep., 436,) the effect of an indorsement as creating an obligation on the part of the indorser, may properly be govern ed by the law of the place where it is made In LebelB. Tucker, (LawB&p., 3 Queen's Bench, 77,) it was held that the contract of the acceptor of a negotiable bill which wasdrawnpayable and accepted in the same country is to pay to any order if valid by the law of that country although the indorsement may not have been valid by the law, of the country where it was made. It was held, however, in Bradlaugh v. De Rin, {Law Sep., 8 Common Pleas, 588,) that as against the acceptor the validity and effect of an indorsement must depend upon the law of the place where the indorsement was made. CHAPTER XLYII. OBLIGATIONS IMPOSED BY LAW. Article 616. Prohibited acts. 617. Performance or omission of acts beyond jurisdiction of na- tion. 618. Performance or omission of acts authorized by law. 619. Ownership and possession of property. 630. Law governing damages caused by act or omission be- yond the jurisdiction of nation. ' Prohibited acts. 616. The obligation arising out of an act prohibited 422 ouTLiisrES of an by the law of the place where done, is determined by such law, except as otherwise provided in this Chap- ter. Andrews «. Pond, IS Peters U. 8. 8upr. Ot. Sep., 65. That the law of the place where the wrong is committed determines so far as regards the sub- stance of the matter on which an action of damage is brought, is the rule in America and Scotland, but by the latest English decisions, (The Halley, 18 Law Journ. (iV. 5.) P. C, 879,) the injury must be actionable by the /ex fori. Guthrie's Samgny, p. 305, note. Performance or omission of acts beyond jurisdic- tion of nation. 617. Except as provided in the next article, an obli- gation may be created in favor of one member of a nation against another, by reason of an act done or omitted beyond its jurisdiction, although no compensa- tion therefor could be recovered by the law of the place. Scott V . Seymour, 1 Hurlstone <& Ooltman's Bep., 234, 335. Performance or omission of acts authorized by law. 618. 1^0 action can be brought for the performance or omission of an act, if such performance or omission was, at the time of its occurrence, ' authorized by an express provision of the law of the place. ' Dobree b. T^a.-pisv,^ Bingham's Wew Gases, 781. The present rule ex- tends this provision to an authorization at any time before the action is ■commenced. Ownership and possession of property. 619. The obligations arising from the ownership or the possession of property are determined by the law of the place where the property is for the time being situated. Law governing damages caused by act or omission beyond the jurisdiction of nation. 620. Where an act or omission occurs within the jurisdiction of one nation, which causes damage solely within, the jurisdiction of another, the obligation to make compensation therefor is determined by the law of the latter. Thus the obligations arising out of an injury to an immovable wherever committed, (Thayer ». Brooks, 17 Ohio Rep., 489 ;) are governed by the law of the place where the property is situated. INTERNATIONAL CODE. 422a CHAPTER XLYIlA. INTERNATIONAL BILLS OP EXCHANGE. Article 620a. 630b. 630c. 620d. 620e. 630f. 630h. 6301. 630j. 630k. 6301. 630m. 620n. 630o. 630p. 630q. 630r. 630s. 630t. 630u. 630v. 620w. 630x. 630?. 680al. 630bl. 630ol. «30dl. 27a Definition of bills of exchange. Who is indorser. Indorsement, general or special. General indorsement, how made special. What indorser warrants. How indorsement qualified. Rights of indorsee. Want of consideration, when it does not exonerate. Who is indorsee in due course. Title of indorsee in due course. Apparent maturity. The same. Presentment for acceptance, when. Neglect to present for acceptance excuses drawer and endorsers, when. Days of grace not allowed. Bill, where payable. Bill accepted payable at particular place, to be there presented for payment. Bill in different parts. Agreement to draw requires drawing in three parts. Presentment, acceptance, or payment of one, good for all. Presentment for acceptance or payment, how made. Presentment to one drawee sufficient for all. Bill which specifies drawee in case of need, must be presented to him. Bill not drawing interest and not presented in certain time, parties exonera'ted. Bill bearing interest, delay does not exonerate. Presentment for acceptance excused, when. Delay in presenting excused, when. Presentment and notice excused, when. Presentment excused, when. Delay in presentment excused, when. 422& OUTLINES OF AK" 620el. Waiver of presentment and of notice, effect of. 620fl. Acceptance to be in writing. 620gt. If written acceptance refused, bill dishonored. 630hl. Wliat may be treated as suflBcient acceptance. 63011. Acceptance on separate instrument, how far binding 620)1. Unconditional promise to accept, sufficient when. 620k 1. When acceptor niay cancel acceptance. 62011. What acceptance admits. 63Uml. What may be demanded as condition of payment. 620iil. When is bill dishonored. 620ol. Notice of dishonor, by whom given. 630pl. Niitice of dishonor, form of it. 630ql. Protest, by whom made. 630rl. Protest, where made; 620sl. Protest, when made. 620tl. Want of protest, when excused. 630iil. If bill waives protest, what to be done. 630vl. Notice of dishonor, how given. 620 wl. Notice, how given in case of death. 620x1. The same. 630yl. Notice of dishonor, when given. 620zl. If sent by post, when deposited in post-office. 620a2. Notice by agent, when given. 630b3. Party receiving notice, when to give notice to prior parties. 630c3. Notice of dishonor by one party good for others. 620d3. When notice of dishonor is excused. 630e3. When dishonored bill may be paid for honor. 620f2. Holder bound to accept payment, not acceptance for honor. 620g3. Payer for honor, what to declare. 630h2. What acceptor or payer for honor must do. 630i2. Bill accepted for honor must be presented for pay- ment. 620J3. Acceptance for honor, does not dispense with notice of dishonor. 630k2. Bill not accepted, must be presented for payment 63012. Damages allowed. 620m3. Damages, how estimated. Definition of hills of exchange. 620a. A bill of exchange, within the meaning of this chapter, is an instrument in writing, by which one who is called the drawer, requests another called the drawee, being in another country, to pay there a speci- fied sum of money at sight or within a certain time, INTEENATIOlSrAL CODE 422c and without any condition not certain of fulfilment, to the order of a third, called the payee. And it may also mention the name of any person in addition to the drawee, to be resorted to in case of need. Who is indorser. 620b. One who writes his name upon a bill of ex- change, otherwise than as a drawer or drawee, and delivers it, with his name thereon, to another, is called an indorser, and his act is called an indorsement. One who agrees to indorse is bound to write his signa- ture upon the back of the bill, if there is sufficient space thereon for that purpose, and if there is not space, a signature equivalent to an indorsement may be made upon a paper annexed. Indorsement, general or special. 620c, An indorsement may be general or special. A general indorsement is one by which no indorsee is named. A special indorsement specifies the indorsee. If the place of indorsement is not specified, it is pre- sumed to be as stated in article 612. General indorsement, how made special. 620d. A bill of exchange bearing a general indorse- ment can not be afterwards specially indorsed ; but any lawful holder may turn a general indorsement into a special one, by writing above it a direction for pay- ment to a particular person ; and a special indorsement may, by express words for that purpose, but not other- wise, be so made as to render the bill not further nego- tiable. What indorser warrants. 620e. Every indorser of a bill of exchange warrants to every subsequent holder thereof, who is not liable thereon to him : 1. That it is in all respects what it purports to be ; 422d OTJTLiisrES of an 2. That he has a good title to it ; 3. That the signatures of all prior parties are bind- ing upon them ; 4. That if the bill is dishonored, the indorser will, upon notice thereof duly given to him, or without no- tice, where it is excused by law, pay so much of the same as the holder paid therefor, with interest, unless exonerated as in this chapter provided. How indorsement qualified. 620f. An indorser of a bill of exchange may qualify his indorsement with the words "without recourse," or equivalent words ; and upon such indorsement he is responsible only as for a simple transfer of the bill. Rights of indorsee. 620g. An indorsee of a bill of exchange has the same rights against every prior party thereto that he would have had if the contract had been made directly between them in the first instance. Want of consideration, when it does not exonerate. 620lx. The want of consideration for the undertaking of a drawer, acceptor, or indorser of a bill of exchange does not exonerate him from liability thereon to an indorsee who in due course receives it. Who is indorsee in due course. 620i, An indorsee in due course is one who, in good faith, in the ordinary course of business, and for value, before its apparent maturity or presumptive dishonor, and without knowledge of its actual dishonor, acquires a bill of exchange duly indorsed. Title of indorsee in due course. 620j. An indorsee of a bill of exchange in due course acquires an absolute title thereto, so that it is valid in ■his hands, notwithstanding any provision of law mak- ing it generally void or voidable, and notwithstanding INTERNATIONAL CODE. 422e any defect in the title of the person from wliom he acquired it. Apparent maturity. 620k. The apparent maturity of a-bill of exchange, payable at a particular time, is the day on which by its terms it becomes due ; or, when that is a holiday, the next business day. The same, 6201. The apparent maturity of a bill of exchange, payable at sight or on demand, is : 1. If it bears interest, one year after its date ; or, 2. If it does not bear interest, ten days after its date, in addition to the time which would suffice, with ordi- nary diligence, to forward it for acceptance. Presentment for acceptance, when. 620ni. At any time before a bill of exchange is pay- able, the holder may present it to the drawee for acceptance. Neglect to present for acceptance excuses drawer and indorsers, when. 620n. When a bill of exchange is payable at a specified time after sight, the drawer and indorsers are exonerated, if it is not presented for acceptance within ten days after the time, which would suffice, with ordi- nary diligence, to forward it for acceptance, unless such presentment is excused. Days of grace not allowed. 620o. Days of grace are not allowed. Bill, where payable. 620p. A bill of exchange is payable, within the country on which it is drawn ; 1. At the place where, by its terms, it is made pay- able ; or, 422/ OUTLINES OF AN 2. If it specifies no place of payment, then at the place to which it is addressed ; or, 3. If it is not addressed to any place, then at the place of residence or business of the drawee, or wher- ever he may be found ; or, 4. If this cannot be done, then at the office of any notary public in the vicinity. Bill accepted payable at particular place, to be there presented for payment. 620q,..-A- bill of exchange, accepted payable at a particular place, must be presented at that place for payment, when presentment for payment is necessary, and need not be presented elsewhere. Bill in different parts. 62 Or. A bill of exchange may be drawn in any number of parts, each part stating the existence of the others, and all forming one set. Agreement to draw requires drawing in three parts . 620s. An agreement to draw a bill of exchange binds the drawer to execute it in three parts, if the other party to the agreement desires it. Presentment, acceptance, or payment of one, good for all. 62 Ot. Presentment, acceptance, or payment of a single part in a set of a bill of exchange, is sufiacient for the whole. Presentment for acceptance or payment, how made. 62 On. Presentment for acceptance or payment must be made in the following manner, as nearly as by reasonable diligence it is practicable : 1. The bill must be presented by the holder or his agent ; 2. It must be presented on a business day, and within reasonable hours ; INTERNATIONAL CODE. 422^' 3. It must be presented to the drawee, if he can be found at the place where payable, and if not, then to any person of discretion there, or to any notary pub- lic in the vicinity ; and, ^ 4. If the drawee requests it, the bill must be left with him, until the same hour of the next day, to which time he may postpone his acceptance or refusal. Presentment to one drawee sufficient for all. 62 Ov. Presentment for acceptance or payment to one of several joint drawees, and refusal by him, dis- penses with presentment to the others. Bill which specifies drawee in case of need, must be presented to Mm. 62 Ow. -^ bill of exchange, which specifies a person to be resorted to in case of need, must be presented to him for acceptance or payment, as the case may be, before it can be treated as dishonored. Bill not drawing interest and not presented in cer- tain time, parties exonerated. 62 Ox. If a bill of exchange, payable at sight .or on demand, without interest, is not duly presented for payment within ten days after the time in which it could, with reasonable diligence, be transmitted to the proper place for such presentment, the drawer and indorsers are exonerated, unless such presentment is •excused. Bill bearing interest delay does not exonerate. 62 Oy. Mere delay in presenting a bill of exchange payable with interest, at sight or on demand, does not exonerate any party thereto. Present/ment for acceptance excused, when. 62 Oz. The presentment of a bill of exchange for Acceptance is excused, if the drawee has not capacity to accept it. ASHTl OUTLINES OF AN Belay in presenting excused^ when. 620al. Delay in the presentment of a bill of ex- change for acceptance is excused, when caused by cir- cumstances over which the holder has no control. Presentment and notice excused, when. 620bl. Presentment of a bill of exchange for accept- ance or payment, and notice of its dishonor, are ex- cused as to the drawer, if he forbids the drawee to accept, or the acceptor to pay the bill ; or if, at the time of drawing, he had no reason to believe that the drawee would accept or pay the same. Presentment, when excused. 620cl. Presentment of a bill of exchange and notice- thereof are excused as to any party to the bill who in- forms the holder, within ten days before its maturity, that it will be dishonored. Delay in presentment, when excused. 620dl. Delay in presentment, or in giving notice of the dishonor of a bill of exchange, is excused when, caused by circumstances, which, the party delaying- could not have avoided by the exercise of reasonable- care and diligence. Waiver of presentment and of notice, effect of. 620el. A waiver of presentment of a bill of exchange- waives notice of dishonor also, unless the contrary is expressly stipulated ; but a waiver of notice does not. waive presentment. Acceptance to he in writing. 620;i. An acceptance of a bill of exchange must be- made in writing, by the drawee, or by an acceptor for honor ; and may be made by the acceptor writing his name across the face of the bill, with or without other words. INTERNATIONAL CODE. 4221 If written acceptance refused, Mil dishonored. 620gl. The holder of a bill of exchange, if entitled to an acceptance thereof, may treat the bill as dishon- ored, if the drawee refuses to write across its face an unqualified acceptance. What may be treated as sufficient acceptance. 620lil. The holder of a bill of exchange may, with- out prejudice to his rights against prior parties, receive and treat as a sufficient acceptance : 1. An acceptance written upon any part of the bill, or upon a separate paper ; 2. An acceptance qualified so far only as to make the bill payable at a particular place within the city or municipality in which, if the acceptance were unqual- ified, it would be payable ; or, 3. A refusal by the drawee to return the bill to the holder after presentment ; in which case the bUl is deemed to be payable immediately, without regard to its terms. Acceptance on separate instrument, how far bind- ing. 62 Oil. The acceptance of a bill of exchange, by a separate instrument, binds the acceptor only to one to whom the instrument has been shown, and who, upon the faith thereof, has given value for the bill. Unconditional promise to accept, sufficient when. 620jl. An unconditional promise, in writing, to accept a bill of exchange, is a sufficient acceptance thereof, in favor of every person to whom the promise has been shown, and who, upon the faith thereof, has given value for the bill. When acceptor may cancel acceptance. 620kl. The acceptor of a bill of exchange may can- cel his acceptance at any time before delivering the bill to the holder, and before the holder has, with the con- 422y OUTLINES OF AN sent of the acceptor, transferred Ms title to another person who has given value for it upon the faith of such acceptance. Wftat acceptance admits. 62011. The acceptance of a bill of exchange admits the capacity of the drawer to draw and indorse it ; and if written upon the bill, it also admits the same to be genuine, and binding upon the drawer ; but it does not admit the signature of any indorser to be genuine. What may be demanded as condition of pay- ment. 620ml. A party to a bill of exchange may require, as a condition concurrent to its payment by him : 1. That the bill be surrendered to him, unless it is lost or destroyed, or the holder has other claims upon it'; or, 2. If the holder has a right to retain the bill, and does retain it, then that a receipt for the amount paid, or an exoneration of the party paying, be written there- on ; or, 3. If the bill is lost, then that the holder give to him an obligation, executed by himself and two suffi- cient sureties, to indemnify him against any lawful claim thereon, or ; 4. If the bill is destroyed, then that proof of its destruction be given to him. When Mil is dishonored. 620nl. A bill of exchange is dishonored when it is either not paid or not accepted, according to its tenor, on presentment for the purpose ; or without present- ment, where that is excused. Notice of dishonor., hy whom given. 620ol. Notice of the dishonor of a biU of exchange may be given : 1. By a holder thereof ; or, INTERNATIONAL CODE. 422A 2. By any party to the bill who might be compelled to pay it to the holder, or who would, upon taking it up, have a right to reimbursement from the party to whoni the notice is given. Notice of dishonor, form of it. 620pl. A notice of the dishonor of a bill of exchange must be given with, or be followed by, a protest. The protest must be made by an instrument in writing, giving a literal copy of the bill of exchange, with all that is written thereon, or annexing the original ; stating the presentment, and the manner in which it was made ; the presence or absence of the drawee or acceptor, as the case may be ; the refusal to accept, or to pay, or the inability of the drawee to give a binding acceptance ; and in case of refusal, the reason assigned, if any ; and finally protesting against all the parties to be charged. Protest, hy whom made. 620^1. Protest must be made by a notary public, if with reasonable diligence one can be obtained ; and if not, then by any reputable person in the presence of two witnesses. Protest, where made. 620rl. A protest for non-acceptance must be made in the city or municipality in which the bill is pre- sented for acceptance ; and a protest for non-payment in the city or municipality in which it is presented for payment. Protest, when made. 620b1. a protest must be noted on the day of pre- sentment or on the next business day ; but it may be written out at any time within ten days thereafter. Want of protest, when excused. 620tl. The want of protest of a bill of exchangf*, or 422Z OTTTLINES OF AN delay in making tlie same, is excused in like cases with the want or delay of presentment. If Mil waives protest, what to he done. 620iil. If a bill of exchange on its face waives protest, it need not be made ; except that if any indorser of such a bill expressly requires protest to be made, by a direction written on the bill at or before his indorsement, protest must be made, and notice thereof given to him and to all subsequent in- dorsers. Notice of dishonor., how given. 620vl. A notice of dishonor may be given : 1. By delivering it to the party to be charged, per- sonally, at any place ; or, 2. By delivering it to some person of discretion at the place of residence or business of such party, appa- rently acting for him ; or, 3. By properly folding the notice, directing it tO' the party to be charged, at his place of residence, according to the best information that the person giv- ing the notice can obtain, depositing it in the post- office most conveniently accessible from the place where the presentment was made, and paying the postage thereon. Notice, how given in ease of death. 620wl. In case of the death of a party to whom notice of dishonor should otherwise be given, the notice must be given to one of his personal representatives ; or, if there be none, then to any member of his family who resided with him at his death ; or, if there be none, then it must be posted to his last place of residence, as prescribed by subdivision 3 of the last article. The same. 620x1. A notice of the dishonor of a bill of exchange INTERNATIONAL CODE. 423m sent to a party after his deatli, but in ignorance thereof, and in good faith, is valid. Notice qf dishonor, when given. 620yl. Notice of the dishonor of a bill of exchange, when given by the holder or his agent, otherwise than by post, must be given on the day of dishonor, or on the next business day thereafter. ^If sent hy post, when deposited in post-office. 620zl. When notice of the dishonor of a bill of ex- change is given by post, it must be deposited in the post-office in time for the first post which closes after noon of the first business day succeeding the dishonor, and which leaves the place from which, for the place to which, the notice should be sent. Notice by agent, when given. 620a2. When the holder of a bill of exchange, at the time of its dishonor, is a mere agent for the owner, it is sufficient for him to give notice to his principal in the same manner as to an indorser ; and his principal may give notice to any other party to be charged, as if he were himself an indorser. And if an agent of the owner employs a sub-agent, it is sufficient for each successive agent or sub- agent to give notice in like manner to his own principal. Party receiving notice, when to give notice to prior parties. 620b2. Every party to a bill of exchange, receiving notice of its dishonor, has the like time thereafter to give similar notice to prior parties as the original holder had after its dislionor. If sent by post, the notice must be deposited in the post-office most con- veniently accessible from the, place where the party giving it resides or receives notice. 39 42271 OUTLINES OF AN Notice of dishonor hy one party good for others. 620c2. A notice of the dishonor of a bill of exchange, if valid in favor of the party giving it, inures to the benefit of all other parties thereto whose right to give the like notice has not then been lost. When notice of dishonor is excused. 620d2. Notice of the dishonor of a bill of exchange is excused : 1. When the party by whom it should be given can not, wi th reasonable diligence, ascertain either the place of residence or business of the party to be charged ; or, 2. When there is no post-office communication be- tween the domicil of the party by whom the notice should be given and the domicil of the party to be charged ; or, 3. When the party to be charged is the same person who dishonors the bill ; or, 4. When the notice is waived by the party entitled thereto. WJien dishonored Mil may be paid for honor. 620e2. On the dishonor of a bill of exchange by the drawee, and, after it has been duly protested, it may be accepted or paid by any person, for the honor of any party thereto. Holder bound to accept payment, not acceptance for honor. 62 Of 2. The holder of a bill of exchange is not bound to allow it to be accepted for honor, but is bound to accept payment for honor. Payer for honor, what to declare. 620g2. One who pays a bill of exchange for honor must declare, before payment, in the presence of a per- son authorized to make protest, for whose honor he pays the same, in order to entitle him to reimburse- ment. INTERNATIONAL CODE. 422o What acceptor or payer for honor must do. 620h2. An acceptor or payer for honor must write a memorandum upon the bill, stating therein for whose honor he accepts or pays, and must, with reasonable diligence, give notice to such party of the fact of such acceptance or payment. Having done so, he is entitled to reimbursement from such party, and from all parties prior to him. Bill accepted for honor must be presented for pay- ment. 62012. A bill of exchange, which has been accepted for honor, must be presented at its maturity to the drawee for payment, and notice of its dishonor by him must be given to the acceptor for honor in like manner as to an indorser ; after which the acceptor for honor must pay the bill. Acceptance for honor does not dispense with notice of dishonor. 620j2. The acceptance of a bill of exchange for honor does not excuse the holder from giving notice of its dishonor by the drawee. Bill not accepted, must he presented for payment. 620k2. If a bill of exchange is by its terms payable at a particular place, and is not accepted on present- ment, it must be presented at the same place for payment, when presentment for payment is neces- sary. Damages allowed. 62012. Damages are allowed as a full compensa- tion for interest, re-exchange, expenses, and all other charges, in favor of a holder for value only, upon a bill of exchange drawn upon any person : 1. In any part of the continent of America or Europe, or the islands in the Atlantic ocean, at the rate of ten per centum thereon ; 422p OUTLINES OF AN 2. In any other place, at tlie rate of twenty per cen- tum thereon. Damages, how estimated. 620iu2. Damages are estimated upon the value of a similar bill at the time of protest, in the place nearest to the place where the bill was negotiated, and where such bills are currently sold. INTERNATIONAL CODE. 423 PART VI. ADMINISTRATION OF JUSTICE. Title XXVII. Judicial Po-wbe. XXVIII. Pkocedorb. XXIX. EvrDENCB. XXX. Effect of Judgmbnts. XXXI. Rules Applicable to Pakticular Subjects TITLE XXVII. JUDICIAL POWER. Chapter XLVIII. In civil cases. XLIX. In criminal cases. CHAPTER XLVIII. JUDICIAL POWER IN CIVIL CASES. Article 631, 633. Remedial justice. 633. When exercise of jurisdiction may be declined. 634, 625. Extrajudicial power. 636. Pursuit of inmate of foreign sliip upon the high seas for crimes, prohibited. 637. Limit of judicial power as to absent persons. 638. Party to the record. 639. Limit of judicial power as to property abroad. 630. Voluntary appearance. 631, Effect of judgment by jurisdiction acquired over property. 633. Effect of judgment by jurisdiction acquired over person. 638, 634. Guardianship. 635. Forfeitures. 28 424 OUTLINES OP AN 636. Actions concerning immovable property. 637. Foreign governments and their representatives. 688. Public property of one nation within the territory of another. 689. Power of consul to appear for member of hia nation. 640. Judicial power of consuls. Remedial justice. 621. Foreigners are entitled to free access to the tribunals of the nation within whose territorial limits they may be, for the prosecution and defense of their rights, in all cases within the jurisdiction of the nation as defined in articles 308 and 309, and are at liberty to employ advocates and agents of whatever description recognized by the local law, whom they may think proper, and in their judicial recourse may enjoy the same privileges and on the same terms,' and no others,* as members of the nation. But this right is subject to the conditions respecting security for costs imposed upon transient persons by the laws affecting local tri- bunals." ' This Article, which is broader than the existing rule of international law, is founded upon the provisions contained in the following treaties: Treaty between the United States and Nicaragua, June 21, 1867, 15 U. S. Stat, at L. 658. Honduras, July 4, 1864, 13 U., 708. Hayti, Nov. 8, 1864, 18 Id, , 714. Bolivia, May 18, 1858, 13 U., 1010. Venezuela, Aug. 27, 1860, 13 M., 1145. Swiss Confederation, Nov. 35, 1850, 11 Id., 588. Two Sicilies, Oct. 1, 1855, 11 Id., 645. Guatemala, March 8, 1849, 10 Id., 878. San Salvador, Jan. 3, 1850, 10 Id., 893. Costa Rica, Jan. 10, 1C51, 10 Id., 930. Peru, July 26, 1851, 10 Id., 934. Argentine Confederation, July 37, 1853, 10 Id., 1008. Hanover, June 10, 1846, 9 Id., 865. New Granada, Dec. 12, 1846, 9 Id., 886. Mecklenburg-Schwerin, Dec. 9, 1847, 9 Id., 918. Treaty between Great Britain and Columbia, Feb. 16, 1866, Accounts & Papers, 1867, vol. 74 Italy, Aug. 6, 1868, Id., 1864, vol. 66. Salvador, Oct. 24, 1863, id, 1863, "75. Nicaragua, Feb. 11, 1860, Id., 1860, " 68. INTEEKATIONAL CODE. 425 Treaty of friendship, commerce and navigation between Prance and New Granada, May 15, 1856, Art. IV., 7 De Glereq, 103. San Salvador, Jan. 2,1858, " lY., 7 id, 363; Peru, Marcli 9, 1861, " III., 8 Id., 193. By the treaty of friendship, commerce and navigation between France and Honduras, Feb. 32, 1856, Art. IV., (7 De Clercq, 10,) it is declared, that foreigners of either nation are entitled to be present in the other nation, at all judicial and oflBcial investigations, examinations of wit- nesses and decisions in which they are interested ; in all cases in which the laws of the nation allow the publicity of such proceedings. By the convention between the United States and France, 1831, Art. IV., (8 U. 8. Stat, at L., 432,) foreigners may prosecute claims against the government of a nation before the competent judicial or administrative authorities, on complying with its laws and regulations, the dispositions and benefits of which shall be applied to them in like manner as to mem- bers of the nation. Twiss, (1 Law of Nations, 335,) states the rule which obtains in Great Britain, the United States, the Germanic States and Holland, in substance, as follows ; A foreigner equally with a citizen may bring a personal action against a foreigner before the tribunals of the country where the defendant may be. He may bring real or possessory actions, before the tribunals of the country where the thing in controversy is. The French rule is more restricted. See the case of Casalini against Isabella, ex-queen of Spain, Feb., 1870. Some exceptions which are now recognized in the application of this rule should be noticed. No suit or proceeding can be maintained in the courts of a neutral nation by the subjects of one belligerent against the subjects of the other for acts growing out of the war. Juando v. Taylor, 2 Paine's U. 8. Circ. Gt. Rep., 652. In France, with few exceptions the tribunals do not exercise jurisdic- tion of controversies between foreigners respecting personal rights and interests, but this is a matter of mere municipal policy and convenience,, and does not result from any principle of international law. Story, Confl. ofL.,%54:2. The American courts make similar exceptions in some cases between the master and seamen of foreign vessels, and other controversies be- tween transient foreigners. ' De La Vega v. Vianna, 1 Barnewall & Adolphus, 284, 388 ; Liverpool ' Marine Credit Co. v. Hunter, Law Sep., 8 Chancery App., 486. ' The right is thus limited by the provisions of several treaties, e. g.. Treaty between France and Sardinia, March 24, 176- 1 Fcdix, p. 804. Switzerland, July 18, 1828, 1 Fcelix, p. 804. The same. 622. The provisions of the last article apply to 426 OUTLINES OF AN every foreign nation whose existence is recognized by the nation creating the tribunal. Eepublic of Mexico ■». Arangoiz, 5 Duer {New York) Sep., 634 ; Hullett V. King of Spain, 1 Dow & Olark's Bep., 169 ; United States v. Wagner, Law Bep., 3 Chancery Appeals, 582 ; King of Prussia ®. Keupper, 32 Missouri Bep., 550. When exercise of jurisdiction may he declined. 623. Any nation may authorize its tribunals to decline the exercise of jurisdiction in cases between foreigners who have an adequate remedy at home. See Article 631, note 1. So, far as the nature of the action is concerned, one foreigner may sue another foreigner in American courts for an injury to the person com- mitted in another country, as freely as on a contract made in anpther country But for reasons of policy the courts may decline to exercise this jurisdiction, except in special cases. The courts of a country are maintained for the benefit and at the expense of its citizens. It is against public policy to encourage foreigners to bring their matters here for liti- gation ; but if a foreigner flee hither he may be pursued and prosecuted here. De Witt ». Buchanan, 54 Ba/rbour (New YorK) Bep., 31. Extra-judicial power. 624. No nation can exercise judicial power within the territorial limits of another nation, except in the cases provided for by this Code, or by special compact. A treaty is the best proof of the consent and acquiescence of the nation. Glass B. The Betsey, 3 Dallas U. 8. Bupr. Ot. Bep., 6; and see Jecker v. Montgomery, 13 Howard's U. 8. Supr. Gt. Bep., 498. According to the existing rule, however, it is not the only proof, especially in transactions between European princes and Oriental States, in which cases the exist- ence of a tribunal by sufferance of the local authorities has been held sufficient proof of their consent. Opinions of Sir Robert PHiLLmDRB, Sir John Karslakb and Mr. Forsyth. Gases and Opinions in Oonstitu- iional Law, hy Forsyth, p. 231, note. The same. 625. No nation can execute its process within the exclusive jurisdiction of another. Every act done in a,ttempting such execution is a nullity, incapable of binding persons or property anywhere. Story, Confl. ofL.,% 539, extended by making the nullity universal, not merely a rule for other jurisdictions. Pursuit of inmate of foreign ship upon the high seas, for crime, prohibited. 626. An inmate of a foreign ship who commits au rNTBENATIONAL CODE. . A%1 infraction of the criminal law of a nation, ' within its territory, can not be pursued beyond its territory into any part of the high seas. This would not prohibit such pursuit in cases of Infraction of this Code, e.g., piracy. ' See Bluntschli, Droit Intern. Codifle, % 342, to the contrary. Limit of judicial power as to absent persons. 627. Except as provided in this Code, a nation "can exercise no Judicial power over a person within the exclusive Jurisdiction of another nation, other than that which it may exercise through his allegiance. The exceptions are where the absent person ; (1) voluntarily appears or, (2) has some personal relation, as that of husband, wife or parent, to a person who is within the jurisdiction ; or, (3) was within the juris- diction at the commencement of the proceedings, but afterwards absented himself. The object of these provisions is not to define the cases in which each nation will exercise judicial powor, but to state those casss in which it is thought the exercise should be prohibited. In cases not within the prohibitions, each nation, may or may not exercise judicial power as it deems proper. . The judicial power in civil cases will extend in general over the follow- ing classes of persons and property : (1.) All property movable or im- movable within the territorial limits ; (2) All public national property; and shipping having the national character ; (3.) All persons within the legal territorial or extra-territorial jurisdiction, as defined by Articles 308 and 309 ; and (4.) All the members when not within the exclusive juris- diction of another nation. It, perhaps, should be added, that in cases afEecting directly the status or social relations existing between two or more persons, the power to ad- judge relief to a person domiciled within the state is not 'necessarily af- fected by the absence of another party to the relation. Thus, for instance, an orderof filiation is held valid under the English statute if founded on service of summons at the last place of abode of the putative father, al- though it be shown that the man was at the time absent in a foreign country. The Queen v. Damarell, Law Sep., 3 Queen's Bench, 50. Party to the record. 628. The party to the record is the person on whom the Jurisdiction of a tribunal depends, where the Juris- diction depends on the person. Thus a bill lies to enforce an equitable interest in lands held by the defendant in trust for a foreign government. Sharp's Rifle Manufac. Co. «. Rowan, 34 Connecticut Rep., 339. 428 OUTLINES OF AS Limit of judicial power as to property abroad. 629. Except as provided in this'Oode,' a nation can exercise no judicial power over private property, which is within the exclusive jurisdiction of another nation, other than such ° as it may exercise by controlling the acts of its owner. ' See Article 637, note, 'This exception will include such cases as the jurisdiotion to enforce specific performance of a contract to convey lands in another nation ; or to cancel a usurious mortgage on such lands ; or to require an assignment by a bankrupt including foreign assets. Voluntary appearance. 630. In civil cases, a voluntary appearance of any person, natural or artificial, may be treated as equiva- lent to personal presence and service within the juris- diction. The following authorities extend the jurisdiotion to all persons, al- though beyond the territory, who voluntarily submit themselves to the jurisdiotion of the nation in the manner prescribed by its laws in force at the time of such submission. Meeua v. Thellusson, 8 Exchequer Bep., 638. "It is not contrary to natural justice that a man who has agreed to receive a particular mode of notification of judicial proceedings should be bound by a judgment in which that paticular mode of notification has been followed, even though he may not have had actual notice of them." Vallee v. Dumergue, 4 Exchequer Bep., 390, 303. " Not only is such a clause binding," (i.e., " a clause that the party in qu estion elects for the purpose of the instrument, a certain spot as his domicil,") " but so also even without express stipulation to that elfect is a provision of the law of the place of contract declaring a certain trans- action to be of its own force an election of domicil there." Westlake, Private Intern. Law, § 383 ; Vallee ii. Durmergue, 4 Exchequer iJijp., 290. So in several of the United States there are statutes providing that con- tracts executed and to be performed by foreign corporations within the territory, may be enforced there after service of process on the person who represented the foreign company in making the contract, even though he has ceased to be its agent. Lafayette Insurance Co. i>. French, 18 Hoio- a/rd U. 8. bupr. Ot. Bep., 407 ; Q-illespie v. Commercial Ins. Co., 13 Gray (Massachusetts) Bep., 301. Effect of judgment by jurisdiction acquired over property. 631. -A- judgment in a case which is brought within the judicial power of the nation, by reason of the pres- ence or character of the property merely, the person not being subject to the jurisdiction, binds such prop- INTERNATIONAL CODE. 429 erty everywhere ; but can not bind the person any- where, except in relation to the property, and its appli- cation. Stwy Confl. of L.,% 546. Green «. Van Buskirk, 7 Wallace U. S. Supr. Ct. Rep., 139. Effect of judgment hy jurisdiction acquired oner person. 632. A judgment, affecting property in a case which is brought within the judicial power of the nation, by reason of the person merely being subject to the juris- diction, binds such person everywhere, but can not directly bind property which is not subject to the judi- cial power of the nation. Story, Gonfl. of L., § 543. CruardiansTiip. 633. The courts of a nation have power to appoint a guardian of the person of an infant who is within their jurisdiction and there domiciled, or of property within their jurisdiction belonging to an infant who is within ■or without their jurisdiction. See Johnson «. Beattie, 10 Gla/rk & Mnnelly's Sep., 43 ; McLosky u. Heid, 4 Bradford's Surrogate {New Yorh) Sep., 334 ; Stephens v. James, 1 Mylrie & Keen's Sep., 637. The same. 634. The courts of a nation may interfere to protect the person and property of one not having legal capa- city, if such person is within their jurisdiction, not- withstanding the existence of a foreign guardianship ; and may appoint a new guardian for such purpose. In cases other than infancy, the courts of a nation may determine the question of legal incapacity, upon which the appointment of a guardian depends, so far as it affects the person and movables, unless the person be domiciled in another nation whose courts have deter- mined such capacity ; and in all cases may determine «uch question as to immovables within its own limits, "with the effect prescribed in article 558. Forfeiture. 635. An action for a forfeiture can be brought only in a court of the nation imposing the forfeiture. The 430 OUTLINES OF AN term "forfeiture," as used in this article, means a pen- alty for a wrong, without any necessary relation to the actual damage. Westlake, Private Intern. Law, % 403 ; Story, Uonfl. of L., § 621. For example, a statute making officers of a corporation liable for its^ debts when they fail to make report of the condition of the corporation. Derickson v. Smith, 3 Butcher (New Jersey) Sep., 166. Story, Oonfl. of L., § 554. Actions concerning immovahle property. , 636. Actions to recover immovable property, or for iniuries ' thereto,' can be brought only in the nation within whose territory the property is situated. ' Doulsou 11. Matthews, 4 Term Bep., 503 ; Livingston ®. JeflFerson, 1 BroekenbroughU. S. Oirc. Gt. Bep., 203; Watts v. Kinney, 6 Hill {New 7ork)Bep.,81 ; Northern Indiana R. B. i). Michigan Central R. R., 15- Howard U. 8. Supr. Ut. Bep., 242-244. ' Rogers v. Woodbury, 15 Pickering {Massachusetts) Bep., 156. Foreign governments and their representatives. 637. A nation can exercise no judicial power over foreign sovereigns ; nor over the property of foreign states, nations or sovereigns ; except such property as against the will of the nation is within its jurisdiction, and except, also, as provided in the next article. The exemption of agents of international intercourse is defined by Articles 139 and 140. Duke of Brunswick ®. King of Hanover, 2 Olarh & Winndly's Bep.,. {N. S.) 1. A foreign sovereign is not amenable to the courts of another country for any act done by him as a sovereign in his own country ; and does not by appearing to a suit waive his right to take that defense ; but if he also has the character of a subject of the country, distinct from that of a foreign sovereign, he may in respect of acta done In that character be made amenable. Duke of Brunswick b. King of Hanover, 6 Bea/oan's Bep., 1 ; 3 House of Lords Cos., 1. Public property of one nation within the territory of another. 638. The judicial power of a nation extends to the- public property of another nation situated within the territory of the former, for the following purposes only: 1. For the purposes of eminent domain ; ' 2. For the enforcement of a lien upon such property INTERNATIONAL CODE. 431 created -within the jurisdiction, unless claimed by a mem- ber of the nation to which the property belongs ; and, 3. To cut off such a lien held by the former nation or its members ; Subject to the power of the nation in the last two cases to take possession of the property, for the benefit of the foreign nation, on indemnifying the creditor. ' See Article 50. Power of consul to appear for niemher of Ms nation. 639. A consul has power to appear before any court or tribunal, in case of necessity, on behalf of any mem- ber of his nation who may be absent, incapable, or not well represented. Treaty between the tTnited States and New Granada, May 4, 1850, Art. III. Special authority from the parties in interest is not necessary. Blunstchli, Droit International Godifie, § 256 ; 1 Kent's Commentaries, 43. Judicial power of consuls. 640. The consuls of any nation have jurisdiction to determine controversies of every nature ' arising either at sea or in port, between the officers and crews, or any of them, of ships ' belonging to the nation of the consul, without the interference of the local authorities, unless the conduct of the parties disturbs the peace ; ' but with- out prejudice to the right of the parties to resort, on their return, to the judicial authority of their own nation.* By the Act of Congress of the United States, (March 5, 1855, " to regu- late the carriage of passengers on steamships and other vessels,") all dis- putes and differences of any nature between the captains and their officers on the one hand, and the passengers of their ships on the other, shall be brought to and decided by the circuit or district courts in the United States, to the exclusion of all other courts or authorities ; and this pro- vision is made a part of the treaty between the United States and Italy, Feb. 8, 1868, Art. XII., 15 U. S. Stat, at L., {Tr.,) 185. In the case of the Golubchick, 1 W. RoUnson Sep., 148, 153, it was held that the Court of Admiralty has a right to iinirlere in suits for wages prosecuted by foreign seamen against foreign vessels. Consent of the foreign minister or consul is not essential to found the jurisdiction of the court in such a case. It is necessary, however, that no- tice of intended proceedings should be given in the first instance to the representative of the government to which the vessel proceeded against belongs. In La Blache v. Rangel, Law Sep., 2 P. C. App., 38, Lord Romillt 482 OUTLINES OF AN held, that if a foreign consul, by protest, objects to the prosecution of a suit, the Court of Admiralty will determine whether it is 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 neto on the exercise of jurisdiction by the Court of Admiralty. The consul may thus intervene even against the claim of a member of the nation ; it is the nationality of the vessel, and not the nationality of the individual seaman suing for wages, that determines the course of procedure. ' Convention between the United States and Italy, Feb. 8, 1868, Art. XI., 15 .U. 8. Stat, at L., 609. ^ Perhaps this should be expressly restricted to private ships, ' Some of the French treaties qualify this by the additional exception of cases, " where a member or inhabitant of the country or one not at- tached to the vessel is involved." * Treaty between the United States and Denmark, July 11, 1861, Art. I., IZ U. 8. Stat, at L.,m5. Venezuela, August 37, 1860, " XXVI., 12 Id., 1143. Many other treaties contain substantially similar provisions. CHAPTER XLIX. JUDICIAL POWER IN CRIMINAL CASES. Akticlb 641. Criminal jurisdiction of a nation over its own members. 643, 643, 644. Criminal jurisdiction of a nation over foreigners. 645. Torts against immigrants by carriers. 646. Conspiracies against foreign government. 647. Limit of punishment of foreigners. 648. Punishment on foreign private ships. 649. Foreigners within a nation without their consent. 650. Pirates subject to the criminal jurisdiction of all nations. Oriminal jurisdiction of a nation over its own members. 641. The members of a nation are subject to criminal prosecution in its own tribunals, and in no others, for an infraction of its criminal law committed within its ex- clusive jurisdiction, except as provided by this Chapter. INTERNATIONAL CODE. 433 For such infractions committed within its concurrent Jurisdiction, they are thus subject until tried for the same acts' and convicted or acquitted in a compe- tent tribunal of the nation where the act was com- mitted. ' Although the act committed within the concurrent jurisdiction may constitute a different crime by the law of each nation, there seems to be no reason for allowing a double punishment. Criminal jurisdiction of a nation over foreigners. 642. The administration of criminal justice by a nation, through its tribunals, extends to foreigners actually within its territorial limits, who have com- mitted an infraction of its criminal law in whole or in part, ' either, 1. Within its territorial limits ; or, 2. On board the public vessels of the nation in any place whatever ; or, 3. On board the private vessels of the nation on the high seas ; or, 4. On board the private vessels of the nation, within the territorial jurisdiction of another nation, if the offender has not been already tried for the act in ques- tion and acquitted, or convicted in a competent tribu- nal of the nation where the offense was committed. ' One whose act in one country causes death in another, may be trier! in either. Opinion of Sir J. Mabiott in Oases and Opinions in Constitu- tional Lam, hy Forsyth, p. 317. In State v. Grady, 34 Connecticut Rep., 118, the rule laid down was, that no State can punish criminally an act which was wholly committed without its territorial jurisdiction, but if any part of the criminal act be committed within the jurisdiction, the offender, whether he was at the time within the jurisdiction or not, may be punished, if jurisdiction can be obtained of his person. Crimes committed on the high seas, whether on board public or private ships, are considered as committed in the territory of the nation to which the ship belongs, whether the accused be of the nationality of the ship or a foreigner, and whether the crime were committed against a fellow countryman or between foreigners. Riquelme, Dereelio Internacional, tom. I., pp. 243, 245, as quoted and approved by Attorney-General Gushing, 8 Opinions of U. S. Attorn.-Oen. , 73, and Oases and Opin. in Oonstitutional Law, liy Forsyth, p. 412. It is there added, in explanation of the rule that if the ship, ou boanl 434 OUTLINES OJF AN of wliich the crime had been committed, arrives at a port, the jurisdic- tional right of the nation to which the ship belongs over the accused does- not on that account cease. So that if the accused were a foreign subject of the nation to vyhich the port belongs, at which the ship stops, even in that case it is the right of the captain to detain him on board, that he- may be judged by the tribunals of the ship's country. And if this per- son should get on shore, and should 'institute before the tribunals of liis country proceedings against the captain, the local authority will be incompetent to judge the foreign captain, because the fact in question occurred in a foreign country,— that is, on board a foreign vessel on the- high seas, — and because, by embarking on that ship, the party is pre- sumed to have submitted himself to the laws of the foreign territory of which the ship constitutes a part. Compare 18 and 19 Vict., ch. 91, § 31 ; The Queen «. Lopez, 27 Law Journ., Mag. Gases, 48 ; Cases and Opinions in Constitutional Law hy For- syth, ^.'iZ^; and United States Crimes Act of 1835, 4 U. 8'. Stat, at L., 115. Riquelme, cited above, lays down the rule that crimes committed on board a private vessel within the territorial jurisdiction of a nation are- copnizable by the courts of that nation, unless the offense affects only the interior discipline of the ship without disturbing or compromising the- tranquillity of the port and without affecting a citizen or domiciled resi- dent of the country, and the local authorities must not interfere except at the instance of the consul and in aid of the jurisdiction of the nation to which the vessel belongs. The conflict of authorities in reference to this rule will be found reviewed in Bishop on Criminal Law, §§ 595-600. The same. 643. The criminal Jurisdiction of a nation extends to foreigners : 1. Wlio commit theft beyond its limits, and bring, or are found with, the property stolen, within its lim- its ; or, 2. Who, being beyond its limits, abduct or kidnap, by force or fraud, any person, contrary to the laws of the place where such act is committed, and send or convey such person within the limits of the nation, and are afterwards found therein ; or, 3. Who, being beyond its limits, cause, or aid, advise or encourage, another person to commit any act, or be guilty of any neglect within the same, which is a criminal act or neglect according to the laws of the na- tion, and who are afterwards found within its limits. Penal Code, reported for New York, § 15. INTEKNATIONAL CODE. 435 The same. 644. The criminal jurisdiction of a nation extends also to foreigners found within its jurisdiction, who have committed at any place beyond its territorial lim- its either as principals or accessories any of the follow- ing infractions of its criminal law : 1. A crime against its national safety ; or, 2. Counterfeiting or forging its national seal, national papers, national money having currency within its lim- its, or bills of any bank authorized by its laws. These provisions are taken from the Law of June 27, 1866, amending Articles 5, 6 and 7 of the French Criminal Code, vol. 9, p. 557. Torts against immigrants by carriers. 645. Carriers, of whatever nationality, who bring the aggrieved person within the territorial limits of a nation, are punishable through its tribunals for any wrong committed by them against an immigrant, which, if committed within its exclusive jurisdiction, would be an infraction of its criminal law. According to the opinions of Sir JoHX DoDSON, Sir John Romillt and Sir A. E. CocKBURN, {Forsyth's Oases & Opinions in Constitutional Law, p. 328,) the courts of Great Britain and of her colonies now have no such jurisdiction in case of injuries comnaitted on the high seas under a foreign flag. This article would obviate such a failure of justice. Conspiracies against foreign nation. 646. Conspiracies formed within the jurisdiction of one nation against the government of a friendly nation and carried into effect by overt acts, are punishable by either nation within whose jurisdiction the offender is found. See Regina v. Benard, 1 Foster & Finlason's Rep., 240 ; Cases & Opinions in Constitutional Law, by Forsyth, p. 236. Limit of punishment of foreigners. 647. No greater punishment can be inflicted by any nation on a foreigner than such as is allowed by the law of the place to be inflicted on a member of the nation in a like case. Punishment on foreign private ships. 648. No punishment can be inflicted on board of 30 436 OUTLINES OP AIT private ships of one nation, within the territorial juris- diction of another, greater than is allowed by the law of the latter, for the like offense committed on board of domestic ships. Foreigners within a nation witJiout their consent. 649. Tiie provisions of article 642 apply to foreigners brought or being within the territory of a nation with- out their free consent. Eegina D. Lopez, 7 Ooae's Criminal Cases ; S. C, 1 Dearsly & Bell's Crown Cases, 525. See People v. McLeod, 25 Wendell (New York) Sep., 603. " It is a well settled rule of iiiteruational law that a foreigner is bound to regard the criminal laws of the country in which he may sojourn, and. for any offense there committed he is amenable to those laws. . . . His escape into Canada did not purge the offense nor oust our j urisdiction. Being retaken and brought in fact within our jurisdiction, it is not for us to inquire by what means or in what precise manner he may have been brought within the reach of justice." State v. Brewster, 7 Vermont Sep., 122, 123. " There is no offense in trying, and, if he be guilty, convicting the sub- ject of a foreign government who has been guilty of a violation of our laws within our jurisdiction ; or if he had made his escape from our juris- diction and by any accident were thrown within it again ; if he were shipwrecked on our coast, or fraudulently induced to' land by a repre- sentation that it was a different territory, with a view to his being given up for prosecution, there would seem to be no reason for exempting him from responsibility to our laws." State «. Smith, 1 Bailey Law Hep., 292. See Exp. Scott, 9 Barnewall & Creswell's Sep., 446 ; Bishop's Criminal Law, § 694 ; Britton's Case, 2 City BaU Bee, {New York) 1191 Pirates subject to the criminal jurisdiction of all nations. 650. Persons guilty of piracy, as defined in Chapter X., on Piracy, are subject to be tried in the courts of any nation within whose jurisdiction they are found, and to be punished as its laws prescribe. Every human being, whether belonging to a civilized or uncivilized community, and with or without social or political ties, is under the protection of law, and if he does not belong to a nation having a recognized government, an injury to his person or property by a member of any nation, party to this Code, shall be deemed a violation of public law, and punishable as piracy. INTERNATIONAL CODE. 437 TITLE XXVIII. PROCEDURE. Abticlb 651, 652. Law of the forum. 653, 654. Measure of damages. 655. Absence of proof of foreign law. Law of the foruTn. 651. The form of the remedy and the mode of pro- cedure are governed by the law of the place where the proceeding is taken. Story, Gonff. of L., §§ 556, 575, et seq. ; Carver ». Adams, 38 Vermont Rep., 500; Shermans. Gassett, 4 Gilman {Illinois) Hep., 531; Mason v. Dousay, 35 Illinois Rep., 424. " On matters of procedure all mankind whether aliens or liege subjects . . . are bound by the law of the forum. If a law were made upon this subject working oppression and injustice to the subjects of a. foreign State, that State might make representations and remonstrances against this law to our government ; but while it remains in force judges have no choice but to give it effect." Lopez s. Burslem, 4 Moore's Pri/oy Council Rep., 305. The rule extends to the question of parties to a judicial proceeding. Westlalce, Private International Law, 409 ; Kirkland «. Lowe, 33 Missis- sippi Rep., 423 ; Wilson ■». Clark, 11 Indiana Rep., 385 ; Foss ■». Nutting, 80 Massachusetts (14 Gray) Rep., 484 ; Blane v. Drummond, 1 Brockeribrough U. 8. Girc. Gt. Rep., 62 ; Raymond «. Johnson, 11 Johnson's {NewYork) Rep., 490 ; Roosa v. Christ, 11 Illinois Rep., 450. The rule extends to the admissibility of a set-off, counter-claim, re- coupment or compensation. Story, Gonfl. of L., § 575 ; Westlake's Private Intern. L., § 411 ; 2 Parsons on Gontracts, 593; Bank of Galliopolis «. Trimble, 6 B. Monroe {Kentucky) Rep., 599. The rule extends to defenses under statutes of limitation. Mr. Westlake, however, contends that statutes of limitation are essen- tial modifications of the rights created by the jurisprudence in which they exist, principally on the ground that " a right is only a faculty of putting the law in force," — i. e., by means of an actual judicial remedy. The definition is certainly opposed to authority, {Lindsay's Introduc- tion to Jurisdiction, App. CXV., CXXVI. ; Windscheid Pandekten, §§37,288;) and does not agree with the rule, that, a lien, mortgage of pledge, is not extinguished by the limitation having attached to the prin- cipal obligation, {Givil Code reported for New Tork,% 1605 ; Brent «. Bank of Washington, 10 Petets' U. S. Supr Gt. Rep., 590 : Eastman v. Foster. 433 OUTLINES OF AN 49 Massachusetts Bep., 34 ; 1 WasKbum on Beat Property, Book I., ch. 16, -§ 28, p. 561 ;) and in general, it is certain that a lien may exist although no action lies to enforce it. Be Bromhead, 16 La/w Journ., Queen's Bench Jtep., 355 ; Kelletts. Kelly. 5 Irish Equity, 34, 37; the Siren, 8 Wallace U. 8. Supr. Ot. Bep., 158. The same. 652. Where the law of the place not only bars the remedy but vests the title to personal property or ex- tinguishes the right ; the title so acquired, and the right so extinguished remain the same everywhere. Fears v. Sykes, 35 Mississippi Bep., 683 ; Mosely v. Williams, 5 Howard IT. S. Supr. Gt. Sep., 533; Shelby ». Gay, 11 Wheaton U. 8. Supr. Ot. Mep., 363. A statutory prescriptive title acquired by possession extends to cases ■where the possession is beyond the territory of the State enacting the rStatute, if the action to enforce the title is brought within such territory. Blacliburn v. Morton, 18 Arkansas Bep., 384. Measure of damages. 653. The measure of compensation in damages -which may be awarded in a judicial proceeding is gov- erned by the law of the place where the cause of action arose. The foreign penalty can not be also awarded. 33 Illinois Bep., 609. Where the statutes of a State make shareholders in a corporation liable for the debts of the corporation, and prescribe the remedy to enforce the ■same, the courts of another State will not allow creditors to pursue against its own citizens a different remedy which will operate with greater hardship upon them. Erickson e. Nesmith, 81 Massachusetts Bep., 331 ; Halsey v. McLean, 94 Massachusetts Bep., 438. The same. 654. Where money is the object of the proceeding, the tribunal must allow that sum in the currency of the country where the proceeding is brought, which will place the party in funds to the amount due in the country where the debt is payable, calculated \ij the real par and not by the nominal par of exchange. Btory, Oonfl. ofL.,% 309. The measure of damages is the amount in the money of the forum which is there equal to the sum which the plaintiff was entitled to Abroad. Stauwood V. Flagg, 98 Massachusetts Bep., 134 ; Nickerson b. Soesman, «8 icJ., 364 ; Gushing o. Wells, 98/d, 550 ; Marburg «. Marburg, 'iQMary- 2and Bep., 8 ; Renners v. Clemens, 58 Pennsylvania State Bep., 34. INTERNATIOJSTAL CODE. 439 Absence of proof of foreign law. 655. The tribunals must in every case appljr the law of their own nation, unless a foreign law applicable to the case is shown. Foulke ®. Fleming, 13 MamrylanA Bep., 393 ; Beans. Briggs, 4 Jojoa Sep., 464 ; interpretation, Whidden v. Seelye, 40 Maine Bep . , 347. To the contrary, Cammell v. Sewell, 5 MurUtone & Norman Bep., 740. Cwil Code, reported for New Torh, § 1887. A party who relies upon a right or an exemption by foreign law, is bound to bring such law properly before the court and establish it in full, ■otherwise the court, not being entitled to take notice of such law without judicial proof, must proceed according to the law of its own nation. Lloyd «. Ginbert, Law Bep., 1 Queen's Bench, 115. It is a well settled rule founded on reason and authority, that the lex fori, or in other words, the law of the country to whose courts a party appeals for redress, furnishes in all cases, prima facie, the rule of deci- sion ; and if either party wishes the benefit of a different rule or law, as, for instance, the lex domicillii, lex loci contractus, or lex loci rei sitce, he must aver and prove it. Norris v. Harris, 15 California (Harmon) Bep., 336. To this rule, an exception has heretofore been recognized to some extent in the United'States by presuming that the common law prevails. 39 440 OUTLINES OF AN TITLE XXIX. EVIDENCE. Akticlb 656. Admissibility and efEect of evidence. 657, 658. Notary's certificate. 659. Evidence of foreign laws. 660. Record, how authenticated. 661. Oral evidence of foreign record. 662. Manner of proving other official documents. 663. Contents of official certificates. 664. Taking foreign testimony. 665. Form of oath or affirmation. AdTnissibility and effect of evidence. 656. The law of the nation within whose jurisdiction a tribunal acts, determines the admissibility and effect of evidence produced before it. Blocker o. Whittenburg, 12 Louisiana Annual Rep., 410. Westldke's Private Intern. Law, §§ 172, 177, 413. Some authorities, however, make an exception to this rule in the case of books of account ; and state that their effect as evidence is governed by the law of the place where they are kept. See Story, Confl. of L., § 635 ; Falix, Droit International Prme, I., p. 461. The presumptions arising from a contract are said by Demangeat, 1 Falix Dr. Intern. PrivS, p. 461, note (a,) to be within this rule ; but the opinion of Fcelix, (1 Id., p. 460,) to the contrary is supposed to be cor- rect. Notary' s certificate. 657. The certificate of a notary, if made under his signature and seal of office, is sufficient in form where- ever produced in evidence. In re Davis' Trusts, Law Rep., 8 Equity Series, 98. Where an affidavit is sworn before a notary abroad, the signature must be verified by oath before it can be received here, though the rule has been relaxed where the fund was very small, (Mayne «. Butler, 13 Weekly Rep., 128.) In re Earl's Trusts, 4 Kay <& Johnson's Rep., 300. The same. 658. The cetificate by a notary ' of his presentment INTERNATIONAL CODE. 441 for and demand of acceptance or payment of any instru- ment which is negotiable by the law of the place where it is payable, and of the refusal of either, and of his protest of such instrument, and of his service of notice thereof on any or all the parties, specifying the mode of giving such notice and the reputed place of residence of the party to whom the same was given, creates a dis- putable presumption of the facts contained in such cer- tificate ■' as against all persons, but not in favor of the notary himself or his successors in interest. ' ' A uniform rule seems desirable in the case of negotiable paper, leav- ing the effect of otter notarial certificates to be governed by the law of the forum. The American courts hold that the admissibility and effect of a notary's certificate are governed by the law of the forum. Kirkland v. Wanzer, 2 Duer {J^ew York) Sep., 278 ; Blocker v. Whittenburgh, 12 ■ Louisiana Annual Bep., 410 ; Gautt ®. Gautt, 12 Id., 673. An exception is made by the Laws of New York, 1865, ch. 309, in the case of a protest, &c., of a foreign bill, note or check. ' Laws of New York, 1833, ch 271, § 8 ; Bank of Vergennes, 7 Bar- iour {New York) Rep., 143. ' This exception is omitted in the New York statute, but seems a rea- sonable one. Evidence of foreign laws. 659. Copies of statutes, codes or other written laws, and of the proclamations, edicts, decrees and ordin- ances of the executive power of any foreign nation, when authenticated by the great or principal seal of the nation, or printed in its books or documents pur- porting or proved to have been published by the au- thority thereof, or proved to be commonly admitted as evidence of the existing law, in the tribunals of such nation, are to be admitted by the tribunals of other nations, on all occasions, as presumptive evidence of such laws, proclamations, edicts, decrees and ordin- ances. The unwritten or customary law of a nation may be proved by oral evidence ; and the books of reports of cases adjudged in its tribunals, may also be admitted as presumptive evidence of such law. SeeZaw of New York, 1869, ch. 888. • The unwritten law of a foreign country is a fact to be proved, as other 442 OUTLINES OF AN facts, by the testimony of exports ; the statutory law, by the law itself, or an exemplified copy. Baltimore & Ohio R. R. Co. v. Glenn, 38 Maryland Rep., 287, Gardner ». Lewis, 7 Oill (Maryland) Sep., 377 ; De Sobry «. De Laistre; 2 //arris & JoTmson's (Maryland) Bcp., 191. A construction given to the statutes or constitution of a State by its supreme judicial tribunal, is to be followed by the courts of other States. Franklin ». Twogood, 25 Iowa Hep., 520. Record, how authenticated. 660. A judicial record of a foreign nation may be proved by the attestation of the clerk, with the seal of the tribunal annexed, if there be a clerk and seal, or of the legal keeper of the record with, the seal of his office annexed, if there be a seal, and with a certificate of the chief judge or presiding officer, that the person making the attestation is the clerk of the tribunal or the legal keeper of the record, and in either case that the signature of such person is genuine ; together with the certificate of the minister or Other officer having charge of foreign affairs of the nation, under whose au- thority the record is kept, and having the custody of the great or principal seal of such government, to the effect that the tribunal whose judicial act is certified, had jurisdiction to perform such act, verifying the signature of the chief judge, or presiding officer. Oral evidence of foreign record. 661. A copy of the judicial record of a foreign nation is also admissible in evidence, upon proof. 1. That the copy offered has been compared by the witness with the original, and is an exact transcript of the whole of it : 2. That such original was in the custody of the clerk of the tribunal, or other legal keeper of the same; and, 3. That the copy is duly attested by a seal, which is proved to be the seal of the tribunal where the record remains, if it be the record of a tribunal, or if there be no such seal, or if it be not a record of a tribunal, by the signature of the legal keeper of the original. INTERNATIOKAL CODE. 443 Manner of proving other official documents. 662. Other foreign official documents may be proved as follows : 1. The acts of the executive, or the proceedings of the legislature, by journals published by their author- ity, or commonly received as such within the jurisdic- tion of the nation, or by a copy certified under the seal of the nation or sovereign, or by a recognition there- of, in some public act of the executive. - 2. Foreign documents of any other class, by the original, or by a copy certified by the legal keeper thereof, with a certificate under the seal of the nation or sovereign, that the document is a valid and subsist- ing document of such nation, and that the copy is duly certified by the officer having the legal custody of the original. Contents of official certificates. 663. Whenever a copy of a writing is certified for the purpose of evidence, the certificate must state that the copy has been compared by the certifying officer with the original, and is a correct transcript therefrom, and of the whole of such original, or of a specified part thereof. The official seal, if there be any, of the certi- fying officer, must also be affixed to the certificate. Taking foreign testimony. 664. it is the duty of the tribunals, of a nation to assist the tribunals of other nations in procuring evi- dence- on the application, duly authenticated, of such foreign tribunals, transmitted in the manner prescribed by the law of the nation where the evidence exists. Nelson «. United States, 1 Peters' U. 8. Oire. Ot. Hep. , 236, note. Petition of Jay and Gierke, 5 Sandford's {ITew TorK) Hep. , 674. This mode of proceeding was, however, disapproved in Ferrie v. Pub- lic Administrator, 3 Bradford's Surrogate {New York) Sep., 249, 264, as exposed to the objection that it removed the investigation into a foreigr court and subjected it to foreign rules of evidence. The French tribunals execute letters rogatory, which are transmittec to them by the Minister of Justice, who receives them from the Ministej of Foreign AflFairs. Fwlix, Droit Intern. Prive, I., p. 466. Similar pro. visions exist in Austria, /d., p. 472. In the United States the courts act without these formalities. 444 OUTLINES OF AN Form of oath or affirmation. 665. An oath or affirmation administered in the form required by the law of the nation within whose juris- diction it is administered, on the requisition of a foreign tribunal specifying no form, is a sufficient authentica- tion of the testimony of a witness. See Faiiai, Droit Intern. PritS. I., §§ 247-349. INTEKNATIONAL CODE. 445 TITLE XXX. EFFECT OP JUDGMENT. Abticlb 666. Force of public or judicial acts. 667. Effect of foreign judgments. 668. Impeachmeut of foreign judgment. 669. Foreign judgment, forbidden to be enforced. 670. Consent to execution of foreign judgment. 671. Judgment in rem. 672. Judgment as to status of a person. 673. Effect of foreign judgments of divorce, insolvency and succession. Force of public or judicial acts. 666. Full faith and credit must be given in each, nation to the public acts, records and judicial proceed- ings of the tribunals of every other nation, ' party to this Code, in cases within its jurisdiction, except as hereinafter in this title provided. This is the rule adopted between the States of the American Union, by the Oonstitution of the United States, Art. IV., § 1. ' This should apply even though jurisdiction was assumed under the -express direction of positive law, (Biihop on Marriage and Divorce, vol. II., § 133 ; Rose v. Himely, 4 Granoh's W. 8. Giro. Gi. Sep., 341.) and to judgments in rem oi determimng status, as well as to personal judg- ments. The concluding qualification here added, referring to the uniform limit ■of jurisdiction prescribed by this Code, will preclude the uncertainty' which has arisen in the American courts in the application of the rule •(United States Goiistitution, Art. IV., § 1) to cases where one State is ac customed to exercise jurisdiction under circumstances in which another would refuse to exercise it, and therefore would refuse to give effect to a Judgment of the former. It may, perhaps, be thought desirable that this provision should be ex- tended to judgments, &c., of the nations which are not parties to this ■Code. Mfeci of foreign judgment. 667. ^ personal judgment has no eflfect beyond the jurisdiction of the nation within which it was rendered, nor within such jurisdiction as against foreigners, ' un- less it appears from the record itself or other proof that it was rendered ; 446 OUTLINES OF AN 1. By a competent tribunal ; and, 2. Between parties either duly appearing, or cited, and legally represented, or defaulting. ' The record is nevertheless open to contradiction in respect to any jurisdictional fact alleged therein. ' It seems impossible to give this rule its proper effect, if it is applied to foreign judgments only. If an English surety should sue his Ameri- can principal in Scotland for money obtained from the surety under the compulsory process of a suit in Scotland without, due appearance or cita- tion, the judgment in that suit ought not to be evidence against the principal, even in Scotland. ' By the declaration of September 11, 1860, between France and Sar- dinia, for the reciprocal execution of decrees and judgments of superior courts, (8 De Glercq, 118,) it was provided that a court in considering a foreign judgment, can question it only in the three following points: First, whether the decision was that of a competent tribunal ; second, whether it was rendered between parties duly cited and legally repre- sented or defaulting ; third, whether the rules of public law or the in- terests of public order in the country where the execution of the judg- ment is demanded are opposed to the enforcement of the decision of the- foreign tribunal. The enactment of a provision creatiag a presumption in favor of the- competency of a superior tribunal does not seem desirable, particularly as it is easier to prove the competency of a court than to disprove it. See Laws of New York, 1865. By the rule which prevails among the American States, however, a. judgment of a superior court of another State is presumed to have been rendered in a case where the court had jurisdiction unless the want of jurisdiction affirmatively appears by the record or by other proof. Bissell ». Wheelock, 65 Massachusetts Rep., 277; Buffmau ». Stimpson, 87 Id., 591 ; Dunbar ». Hallowell, 34 Illinois Sep., 138 ; Sanford v. Sanford, 38- Connecticut Rep., 6 ; Gordon v. Robinson, 15 Maine Rep., 167 ; Rankin v. Goddard, 54 Id., 33. This appears also to be the rule applied by the^ English courts to foreign judgments. Barbers. Lamb, 8 Oommon Bench Rep., 95, and cases there cited. Some earlier authorities tend to the conclusion that a foreign judg- ment can not be disputed where the court by which the judgment was rendered has jurisdiction of the subject of the suit and of the parties. These rules are only applied by the English courts, where it appears that the judgment was on the merits, and that by the law of the place where it was recovered, the decision was final. Frayes v. Worms, 10' Common Bench Rep., (If. iS.,) 158. Impeachment of foreign judgment. 668- -^ foreign judgment may be impeached for fraud or collusion. The authorities restrict the rule to fraud or collusion which could not INTEKNATIONAL CODE. 447 have been proved in the action. But it is suggested that this qualifica- tion should be omitted. Foreign judgment, forhidden to he enforced. 669. No nation is bound to give eflEect to a foreign judgment, if the enforcement thereof is forbidden by an express ' provision of its own law. See Article 666. Consent to execution of foreign judgment. 670. A foreign judgment cannot be executed with- in the territorial jurisdiction of a nation, without a judicial inquiry as to its existence, local validity, and extent. Judgment in rem. 671. A judgment against a specific thing, whether it expressly determines the title to the thing or merely directs specifically its sale,' is conclusive upon all the world as to the title imder the judgment or under the sale had pursuant to it. ' Judgments directing sale for satisfaction of a debt, were held to be in the nature of judgments in rem, and governed by the rule above stated in Imrie v. Castrique, 8 Oommon Bench Rep., {N. 8.,) 405. Judgment as to status of a person. 672. -A- judgment in respect to the personal, political or legal condition or relation of "a particular person is conclusive upon all persons. Judgments on pedigree have been held within the rule that the record of a judgment tra rem is evidence of the facts adjudicated against all the world. Ennis v. Smith, 1853, 14 Howard' « U. S. Supreme Gt. Sep., 400. Effect of foreign judgments of divorce, insolvency and succession. 673. The effect of a judgment, rendered in a case of divorce, or of the administration of the estate of an in- solvent or decedent, is subject to the provisions of the next three Chapters. 448 OUTLINES OF AN TITLE XX XI. RULES APPLICABLE TO PARTICULAR SUBJECTS. Chapteb L. Divorce. LI. Bankruptcy and insolvency. LII. Estates of decedents. LIU. Admiralty. CHAPTER L. DIVORCE. AbticIiE 674. Power of divorce. 675. Jurisdiction unafEected by change of domicil. 676. The domicil required for jurisdiction. 677. Judgment of divorce for defendant. 678. Judgment of divorce everywhere valid. 679. Sufficiency of cause of divorce. 680. Evasion of law. 681. Obligations. 682. Disabilities. 683. " Divorce" defined. The following Articles on the vexed subject of divorce have been framed with a general regard to the principle suggested by Westlake, {Privati Intern. £. . p. 342, ) " that divorces should not be granted when they will not be internationally respected, nor refused when they are demanded by the policy and morals of the forum." As the law now stands, hardly any state observes the same rule in re- cognizing the validity of divorces, granted by other states, which it asserts in the exercise of its own jurisdiction to grant divorces. The decided tendency of the English and American decisions, however, is toward the simple and uniform principle, that the jurisdiction to grant a divorce should depend upon the domicil of the parties, or of one of them, at the time of suit. The contradictory or conflicting rules which various states hav» adopted as defining their own jurisdiction in this respect may be con- trasted as follows r INTEENATIOIirAL CODE. 449 1. That a State may grant divorces to its own citizens or subjects. 2. That a State where a marriage is contracted may dissolve the mar- riage. 3. That the State where the husband was domiciled at the time of his marriage, may dissolve the marriage. 4. That a State within which an offense against the marriage tie is committed may dissolve the marriage. 5. That a State in which the parties, (that is to say the husband,) had a domicil at the time of the offense, wherever the offense may have been committed, has jurisdiction. 6. That the State where the injured party is domiciled at the time of the offense, has jurisdiction. 7. That the State in which the parties, (that is to say the husband,) has domicil at the time of suit, has jurisdiction. This rule is, by some authorities, qualified, by conceding that the hus- band can not, after the offense, change his domicil so as to prevent the wife from proceeding in the previous domicil. 8. That the State in which a plaintiff is domiciled has jurisdiction without respect to the domicil of the defendant. 9. That the State in which either party is domiciled at the time of suit has jurisdiction, In many States, particularly those which refer to the domicil at the time of suit, an actual domicil for all intents and purposes is not re- quired, but a residence for a longer or shorter period prescribed by posi trve rule. The first rule is asserted on the principles that the status of persons must be determined by the domicil of origin, the land of their birth, and that subjects, wherever they are, must be regarded, at least by the courts of their own country, as retaining their original character. The third rule is asserted by some authorities as the exclusive ground of jurisdiction, upon the principle that the law of the place should be re- garded as a part of the contract. The fifth rule is asserted as the exclusive rule of jurisdiction, on the ground that the offense is against the law which governs the status of the parties. The seventh, upon the ground that it is for each State to regulate the status of persons domiciled within it ; and that, as the law which may be in force at the time of suit ought to govern, so the law of the 'place, where the parties are subject at the time of suit, ought to govern. The other rules asserted are embodied, either singly or in combination, in the legislation of various States, but have not been the subject of so much discussion in an international point of view. The provisions of the statutes of a few of the American States are as follows : The rule in Massachusetts in reference to the granting of judicial de- clarations of the nullity of marriages, void under the statute, is as fol- lows : Upon proof of the fraud or other cause of nullity, the marriage is to be declared void by a sentence of divorce or nullity, notwithstandinfr that such marriage was solemnized out of the State, if the libellant h'ld 450 OUTLINES OF AUT liis domicil here when the marriage was so solemnized and wlien the- libel was filed. Oen. Stat, of Massachusetts, of 1860, p. 532, § 4. In reference to divorces, strictly so called, the rule is as follows : When the libellant has resided in the State five consecutive years next preceding the time of filing the libel, a divorce may be decreed for any cause allowed by law, whether it occurred in the commonwealth or else- where; unless it appear, that the libellant has removed into this State- for the purpose of procuring a divorce. Id., § 11. The law of Connecticut is as follows : " If the petitioner shall have removed from any other State or nation to the State, or shall not have statf^dly resided in the State three years next before the date of the pe- tition, the petitioner shall not take anything by the petition, unless the- cause of divorce shall have arisen subsequently to the removal into this State, or unless the adverse party shall have statedly resided in this State three years next before the date of the petition, and actual service- of the petition shall have been made upon such party, in which cases the- petitioner may maintain the petition, although he or she shall not have removed into this State, nor resided therein, three years next before- the date of the petition.'' Gen. Stat, of Connecticut, of 1866, p. 306,. §35. In Pennsylvania, the statute which formerly allowed divorces to be granted only on the application of a citizen of the State who has resided for a year within it has been modified to allow divorces to be granted to a plaintiff who either is a citizen or has resided in the State for one year previous to filing the petition. Purdon's Digest, hy Brightly, 346-7. The law of the place of the BuCtn&X bona fide domicil of the parties gives jurisdiction to the proper courts to decree a divorce for any cause allowed by the local laws without reference to the law of the place of the original marriage. This is the rule laid down, as that established in Pennsyl- vania, in Colvin ■». Reed, 55 Pennsylvania State Rep., 375. But the courts held that the power is only to be exercised where thfr parties at the time of the injury were actually domiciled within the State. Dorsey v. Dorsey, 7 Watts {Pennsylvania) Rep., 349. This rule has been extended in the case of desertions, to those taking place in other States of the Union, but not to those takjng place abroad. Bishop v. Bishop, 30 Pennsylvania State Rep,, 412. In New York, in cases of adultery, &c., the courts have jurisdiction : 1. Where both husband and wife were inhabitants of this State, at the time of the commission of the offense ; 2. Where the marriage has been solemnized, or has taken place in this State, and the injured party, at the time of the commission of the oflfense, and at the time of exhibiting the bill of complaint, shall be an actual inhabitant of this State ; 3. Where the ofEense has been committed in this State, and the in- jured party, at the time of exhibiting the bill of complaint, is an actual inhabitant of this State. 2 New York Uevised Statutes, p. 144, § 88. The statute of Ohio requires the petitioner to be a resident of the Stat^ at least, one year before filing the petition, and allows a divorce whether the marriage took place or the cause of divorce occurred within the State INTERNATIONAL CODE. 451 ■or elsewhere. If the defendant is not a resident of the country, service may be made by publication and mailing. Bev. Stat, of Ohio, by Swan, Ac, vol. I., p. 513, 511. The statute of Illinois is, " No person shall be entitled to a divorce in pursuance of the provisions of this chapter, who has not resided in the State one whole year previous to filing his or her bill or petition, unless the offense or injury complained of was committed within this State, or whilst one or both of the parties resided in this State." Statutes of Illi- nois, by Seates, T. & B., vol. I., p. 150, § 3. The statute of Indiana provides that, " divorces may be decreed by the circuit courts of this State, on petition filed by any person, who, at the time of filing such petition, shall have been a bona fide resident of the State one year previous to the filing of the same, and a resident of the •county at the time of the filing of such petition, which 6oraa JttZe residence shall be duly proven by such petitioner to the satisfaction of the court trying the same." Act of March 4, 1859, Statutes of Indiana, of 1863, vol. II., p. 350, § 6. The statute of Galifornia requires residence within the State by the plaintiff' for divorce, for a period of six months immediately preceding the application. General Laws of California, vol. I., p. 2415. The rule in Virginia i% as follows: " No such suit shall be maintain- able, unless the parties, or one of them, is a resident of the State at the time of bringing the suit. The suit shall be brought in the county or corporation in which the parties last cohabited, or (at the option of the plaintiff,) in the county or corporation in which the defendant resides, if a resident of the State ; but if not, then in the county or corporation in which the plaintiff resides." Code of Virginia, of 1800, p. 530, § 8. Nearly all these rules, it will be seen, authorize divorces in cases in which the existing rules of international law would not recognize the validity of a divorce. Under the Bnglish statute it is understood that the courts have juris- diction to grant divorces where the domicil of the parties is Bnglish, al- though the marriage and adultery took place abroad. They also have jurisdiction where the parties are English subjects, although the offend- ing husband has changed his domicil and committed the offense in a, foreign domicil, and also where foreigners domiciled abroad are married in England according to Bnglish law. Ohitty's Statutes, vol. I., p. 1275, note a. The English statute authorizes the petition to be served within or without the dominion, or service to be dispensed with entirely by the court. The provisions of this Chapter, in connection with those of Chapter XXXIX. on MarbiagB, have been proposed in the hope of presenting a, rule which would avoid the grave inconveniences attending an irrecon- •cilable conflict of jurisdiction in reference to a relation so closely con- nected with the morals and welfare of society. No State, it is conceived, ought to grant divorces upon any rule of jurisdiction which it will not j-eciprocally recognize and respect when exercised by any other State. 452 OUTLINES OF AN * Power of divorce. 674. The power of a nation to grant divorces exists' in the following cases only : 1. When both parties have their domicil within the nation at the time the application for a divorce is made ; ' or, 2. When either party has such a domicil and the other is within the jurisdiction of the nation, and has personal notice of the proceeding ; ' or, 3. When the marriage was contracted within the nation or by its officers, and the applicant for the di- vorce is domiciled there at the time of the application, and the other party has such notice as the proper au- thorities of the nation require." ' Story, Confl. of L., § 597 ; Westlake'a Private International Law, p. 351 ; Bishop, (Marriage & Divorce, vol. II., g 144,) supported the juris- diction in thia case, and it is establislied also in Scotland. It is said by Kent, (3 Commentaries, pp. 117, 118,) that "if a marriage is dissolved in a foreign country not by a regalar judicial sentence but by a special legislative act passed for that purpose ; would such a divorce not be binding here 1 While it is conceded to be a principle of public Taw, that acts valid by the law of the place where they arise are valid every- where, it is at the same time to be understood that this principle relates only to civil acts founded on the volition of the parties, and not to such as proceed froni the sovereign power. The force of the latter can not be permitted to operate beyond the limits of the territory, without affecting the necessary independence of nations." In an international Code it should seem proper to recognize the power of the nation to grant divorces, leaving the department by which this power is to be exercised, to be determined by the municipal law. ^ Bishop states, that the jurisdiction exists in this case and that notice is not always necessary, but it seems proper to require it, and the provision contained in subdivision 3 will obviate any real hardship. * The ditficulty arising when the wrongdoer removes to avoid the juris diction has been the subject of some discussion, and suggests the principle of allowing the resort in such case to the State by authority of which thi; marriage was made. The Revised Statutes of Loiddana of 1850, contain the following pro- visions : Whenever a marriage shall have been contracted in this State, and the husband, after such marriage, shall remove or shall have re- moved to a foreign country with his said wife, if said husband shall be- have or shall have behaved toward his said wife in said foreign country in such manner as would entitle her, under our laws, to demand a sepa- ration of bed, board, or a separation of property, it shall be lawful for her on returning to the domicil where the marriage was contracted, to INTEBNATIONAL CODE. 453 institute a suit there against her said husband for the purposes above mentioned, in the same manner as if they were still domiciliated in said place, any law to the contrary notwithstanding. In such cases an attorney shall be appointed.by the court to represent the absent defendant ; the plaintiff shall be entitled to all the remedies and conservatory measures granted by law to married women, and the judgment shall have force and effect in the same manner as if the parties had never left the State. Sev. Stat, of Louisiana, p. 343, § 4. Jurisdiction unaffected hy change of domicil. 675. A change of domicir after proceedings, com- menced, does not take away the jurisdiction. This article is intended to provide for cases such as those where a domi- ciled plaintiff changes his domicil to avoid a cross bill by a domiciled de- fendant or one who is not domiciled within the jurisdiction, but is only found and served there, under the provision of the first and second sub- divisions of Article 674. The domicil required for jurisdiction. 676. The domicil required for the purpose of jurisdic- tion to grant divorce is that defined by Title YII., on Domicil. Judgment of divorce for defendant. 677. If a suit for divorce be within the jurisdiction of the tribunal, it may entertain a complaint from either party, and grant a divorce to the defendant if the case require it. • This provision is suggested by Jenness ®. Jenness, 'Z^tlndiana Rep., 355. Judgment of divorce everywhere valid. 678. A judgment of divorce pronounced by the proper authority of a nation having jurisdiction, is valid everywhere. Sufficiency of cause of divorce. 679. The sufficiency of a cause of divorce depends exclusively on the law of the forum at the time judg- ment is pronounced. Wegtlake's Private Intern. Law, p. 335. The English rule, it is understood, adheres to the law of England in re- spect to the cause of divorce, in testing the validity of a divorce from an English marriage, granted by a foreign court to suitors domiciled within its jurisdiction. But the converse of this rule would not be applied ; English courts would not grant divorce from a foreign marriage on grounds recognized only by the foreig;u law. 454 OUTLINES OP AN The rule proposed in the text seems the proper one to secure uni- formity. Evasion of law. 680. A divorce granted by the authorities of any nation to a person, intending to evade thereby the pro- visions of this Chapter, is invalid everywhere. Shannon ». Shannon, 86 Massachusetts Rep., 134. The doctrine of the comity of nations requires this. By the existing rule, such a divorce- is perhaps valid in the State where granted. Walker's American Law, 717. Obligations. 681. Obligations imposed by a judgment of divorce follow the person, and may be enforced wherever he is found. Where a court of competent jurisdiction in New York, decreed a, di- vorce a mensa et thoro between man and wife, allowing alimony to the latter, and the husband removed to Wisconsin for the purpose of placing himself beyond the jurisdiction of the court which could enforce it, and while in Wisconsin, without disclosing the circumstance of the divorce in New York, obtained a divorce a vinculo on the allegation that his wife had wilfully abandoned him, — it was held that the divorce could not re- lease the husband from his liability to the decree made against him in New York, upon that decree being carried into judgment in any court where the defendant might be found, or within whose jurisdiction he might have acquired a new domicil. Barber v. Barber, 21 Howard's U. 8. 8upr. Ot. Rep., 583. By other pro,visions of this Code, a judgment of divorce though it can not directly affect the title to real property in another nation, may affect the title to personal property, to the same extent as any other transfer by operation of law. Disahilities . 682. Disabilities imposed by a judgment of divorce, are territorial, and do not affect the capacity of the person when in another jurisdiction, if by the law of the latter place, such disabilities do not exist. Ponsford «. Johnson, 2 Blatahford' s U. 8. Circuit Gt. Rep., 51. A decree of divorce pronounced by the court of chancery of New York was, in its purport and by force of the statute of the State, regarded as an absolute dissolution of the marriage contract for both parties, but the disqualification or disability to marry again declared by the statute as at- taching to the guilty party by way of penalty, was considered as oper- ative only within the State of New York, and not as incapacitating hiin ^rom contracting a valid marriage in the State of New Jersey, where the -samt! disability does ot exist. Ponsford v. Johnson, supra. INTEENATIOJ!IAL CODE. 455 The Statutes of Massachusetts contain a provision that, " When a di- ■vorce from the bond of matrimony, except for the cause of adultery, has been granted under the laws of this State or any State or territory of the Dnited States, the justices of the supreme judicial court, or either ■of them, upon petition filed by the party against whom the divorce was granted, (if the party reside in this State at the time of granting the di- vorce,) and upon such [notice] as the court shall order, may authorize such party to marry again." General Stat, of Massachusetts, of 1880, p. 534, § 36. "Divorce'^ defined. 683. The term " divorce" as used in this Code includes a judgment declaring the parties or either of them free from any or all of the personal obligations of marriage. This will Include decrees of nullity and separation, as well as decrees of dissolution of marriage. In Birt «. Boutinez. Law Sep., 1 Probate & Divorce, 487, it was held that the parties having been married in Scotland, a)id a second time in Belgium, a Belgian judgment dissolving the Belgian marriage; did not dissolve the Scotch marriage. Under the uniform rules embodied in this Code, a judgment of divorce should reach the status of the parties, and not be limited.to a particular contract. CHAPTER LI. BANKRUPTCY AND INSOLVENCY. Article 684. Validity of discharge. 685. Transfer of property. 686. Judgment of bankruptcy without transfer of property. Validity of discharge. 684. The nation, whose law, according to Article €03,' governs the interpretation of a contract, or whose law creates any other obligation, has jurisdiction to grant a discharge therefrom ; and such discharge, if valid according to its law, is valid everywhere. ' A discharge granted in any other place, is valid only as against the nation by whose authority the same is granted, its members and its domiciled residents," and 30 456 OUTLINES OP AN Bucli persons as have obtained or are seeking the ben- efit of the proceedings in which it was granted. * ' Chapter XLVI., on Contracts. ^ Story, Oonfl. of L.,% 381. This is the general principle of interna- tional law laid down by Story, (Id., § 340,) and the American cases re- stricting the eflfect of a bankruptcy discharge to indebtedness due to citi- zens (j)f the state are regarded by him as resulting from the peculiar principles of American constitutional law, and not applicable to foreign discharges. Although some other authorities take a different view, it should seem better to adopt the general principle, and make the dis- charge valid everywhere, subject to the right of every State to apply all property within its territorial jurisdiction to the payment of domestic creditors. See Articles 583 and 685. « Story, Gonfl. of L.,% 343. * Persons who voluntarily prove their claims in the state where the discharge is' granted, thereby place themselves under its jurisdiction. Dunlap s. Eogers, 47 New Hampshi/re Sep., 281 ; Clay v. Smith, 8 Peters' U. S. Supr. Ot. Sep., 412. The act relied on must, of course, be unequivocaL Dynnelly o. Corbett, 7 New York Bep., 507. But the rejection by courts in one state, of the claim of a non-resident against the insolvent estate of a resident, will not bar the same claim when presented in the state of the domicil of such non-iesident. Taylor V. Barron, 85 New Sampshire Sep., 484. Transfer of propertp. 685. A transfer of movables made by a debtor, whether by reason of judicial proceedings or otherwise, which is valid by the law of the place where it is made, is valid as to such property everywhere, subject to the right of any other nation to give a preference or Hen in respect to the movables within its jurisdiction to credi- tors who are subject to its jurisdiction as defined by Title XXVII., on Judicial Power. 4 Kent's Commentaries, 406 ; Hunt c. Columbian Ins. Co., 55 Maine Sep., 290 ; Diinlap v. Eogers, 47 New Hampslme Sep., 281. It hafe generally been held, when questions have arisen in the United States between the bankrupt under a foreign law and his assignee under the same law, they both being citizens and subjects of the country enact- ing the law, where no rights of creditors, citizens of the United States, intervened, that effect should (there) be given to the foreign law. Ples- tero v. Abraham, 1 Paige (New York) Sep., 236 ; Abraham v. Plestero, 3 Wendell {New York) Sep., 540; Hall t). Boardman, 14 New Hampshi/re '• Sep., 38 ;,Hoag v. Hunt, 21 Id., 106 ; Smith v. Brown, 43 Id., 44; Dunlap «. Rogers, 47 New Sampshire Sep., 281 ; Hall ■». Winchell, 88 Vermont Sep., 588. It is the settled doctrine of the courts in the United States, that a prior INTERNATIONAL CODE. 457 assignment in bankruptcy under a foreign law will not transfer property elsewhere as against a creditor of the bankrupt who is a citizen of the government where the property is situated. Frink «. Buss, 45 l^ew Hampsliire Sep., 325. Judgment of banTcruptcy, without transfer of prop- erty. 686. A judgment divesting a debtor of Ms property, without a transfer by him, is valid in the cases, and to the extent prescribed in chapter XL VIII., on Judicial PowEE in Civil Oases. CHAPTER LII. estates op decedents. Abticlb 687. Jurisdiction to grant administration. 688. Limit of administration. 689. Local nature of power of administration. 690. Actions by foreign personal representative. 691. Principal and ancillary administrations. 692. Title to movables. 693. Ancillary representative. 694. Course of administration. 695. Application of property to payment of decedent's debts. 696. Actions against foreign personal representative. 697. When judgment of Probate Court, as to right of suc- cession, is conclusive. 698. Probate of will of property in foreign country. Jurisdiction to grant administration. 687. Subject to the provisions of articles 338 to 344 inclusive,' the nation vpithin whose jurisdiction the movables ' of a decedent or his debtors ' or their prop- erty are found, has jurisdiction* to grant authority to administer such mpvables and the debts due to the de- cedent by such debtors, in the mode prescribed by this Chapter, whether with or without a will. ' The reference is to the consular power to administer the assets of ieamen, &e. ' Matter of Texidor, 3 Bradford's Surrogate (New York) Bep., 105 ; 458 OUTLINES OF AN Public Administrator v. Hughes, 1 Id., 135. " Upon the whole," says Surrogate Bkadford, in Kohler«. Knapp, (1 Bradford Surr. New Tdrk Rep., 344,) upon a review of authorities, " I am inclined to think that the modern rule, accommodating itself to new cases and exigencies, is in fa- vor of the exercise of jurisdiction upon the sole basis of assets of a for- eign decedent coming into the State after his decease." By the treaty between the United States and the Swiss Confederation, 1850, Art. VI., 11 U. 8. Stat, at £., 587. Brunswick and Loeneburg, 1854, " I., 11 Id., 601. Two Sicilies, 1855, " VII., 11 Id., 639. France, 1853, " X., 10 Id., [Tr.,) 114. Russia, 1833, " X., 8 Id., 444. and some other American treaties, any controversy that may arise among the claimants to the same succession as to whom the property belongs, shall be decided according to the laws and by the judges of the country in which the property is situated. See, also, treaty between United States and Hesse-Cassel, March 36, 1844, 9 U. S. Btat. at L., (Tr.,) I., Art. V. Bavaria, Jan. 31, 1845, 9 Id., 9. Saxony, May 14, 1845, 9 Id., 48. Nassau, May 37, 1846, 9 Id., 48. See, however, the convention between France and Austria, for the reg- ulation of successions, Dec. 11, 1866, Art. II., (9 De Olercq, p. 675,) which provides that claims to the succession of movables left in one country by subjects of another, whether at the time of their death established there, or simply transitory persons, are within the jurisdiction of and determin- able by the laws of the State to which the deceased belonged. 2 Debts constitute assets where the debtor resides. Kohler v. Knapp, 1 Bradford's Surrogate {New York) Bep., 341. * When, however, its exercise of such jurisdiction would be productive of injustice, inconvenience, or conflicting equities, the nation should de- cline to exercise it, and remit the property abroad for distribution. Har- vey ®. Richards, 1 Mason U. S. Girc. Ot. Sep., 381, 413 ; Cooper's Equity Pleadings, pp. 1, 2, 3 ; Parsons v. Lyman, 30 New York Sep., 103, 135. Limit of administration. 688. The provisions of the last article do not apply : 1. To those movables, belonging to a decedent at the time of his death, which have been brought within the jurisdiction, after a personal representative duly ap- pointed elsewhere has taken possession of them within the jurisdiction of the nation appointing him ; nor,' 2. To debts due by parties to a negotiable instrument* which at the time of the holder's death was within an- other jurisdiction, the decedent being also domiciled therein at his death." INTEENATIOlfAL CODE. 459 ' Westlake's Private International Law, § 395 ; Story, Oonfl. of L., % 580; Currie e. Bircham, 1 Bowling <6 Ryland's Bep., 35. * Owen». Moody, 38 Mississippi (7 GusJiman) Bep., 79. This exception has been recognized in respect to property which never became assets within the local jurisdiction but was removed into that jurisdiction from the place of principal jurisdiction. Local nature of power of administration. 689. A personal representative can not act beyond the limits of the nation appointing him, in relation to property of the decedent, except as provided in the next article. This provision departs somewhat from the rule recognized by the New York Court of Appeals. Peterson ®. Chemical Bank, 32 New York Bep., 31. The rule laid down in Marcy «. Marcy, 83 Connecticut Bep., 308, as be- ing supported by the current of American decisions at the present day, is that, in the absence of an ancillary administration, a principal adminis- trator, and a fortiori, an executor, can collect and remove debts or prop- erty due or situated in another State, if voluntarily paid or given up. Actions hy foreign personal representative. 690. A foreign personal representative may sue, without any other appointment, to enforce his title to the movables and debts mentioned in article 688, or to recover debts due by persons who at the time of the creditor's death had their domicil within the jurisdic- tion of the nation appoincing him. Principal and ancillary administrations. 691. The place of domicil of the decedent is the place of principal administration ; every other admin- istration is ancillary. Cummings D. Banks, 3 Bariour {New York) Bep., 603; Ordronaux v. Helie, 3 Sandford's Chancery Bep., 513 ; Juarez v. Mayor, &c., of New York, 3 Id., 173 ; Churchill ». Prescott, 8 Bradford's Surrogate {New York) Sep., 233. Title to movables. 692. The title to movables duly vested in a foreign personal representative, or duly acquired through a foreign administration and executed by possession, is valid everywhere. Story, Confl. of L., %% 358, 259 ; Peterson s. Chemical Bank, 83 New York Sep., 21. 460 OUTLINES OF AN The principle here applied is not to recognize the power conferred bj the courts as having an extra-territorial effect; but to recognize th« title acquired under the power executed hy possesion, as valid every- where. ■ Ancillary representatite. 693. An ancillary representative represents the estate only so far as concerns the assets coming under Ms control. ' Course of administration. 694. Every ancillary personal representative is bound to transmit to his principal the assets remaining in his hands after satisfying the claims of creditors, who are subject to the jurisdiction of the nation ap pointing him, to be administered by the principal, either extra-judicially, or, if needful, under the direc- tion of the tribunals of the domicil. Enohin v. Wylie, 31 Law Joum. Ghaneery, 404 ; by Lord WealJmry ; to the contrary, Lords Oranworth and GJielmsford. It was held, however, in Irwin's Appeal from Probate, 33 Oonnecticut Sep., 138 ; and in Dawes ®. Head, 3 Pickering (Massachusetts) Rep., 147, that if there is a deficiency of assets in either jurisdiction, all the prop- erty must be divided among the creditors in both j urisdictions equally, and if there is a surplus in the foreign jurisdiction, it must be remitted to the domestic administrator or distributed there in recognition of, and in subordination to, the title and rights conferred by the will or the law of the domicil. Application of property to payment of decedents debts. 695. The nation having jurisdiction to grant author- ity to administer, has also exclusive jurisdiction to apply the movables and credits to which such author- ity extends, to the payment of debts due to persons subject to its jurisdiction. , Payment to the administrator of the creditor's domicil by a. debtor domiciled elsewhere at the death, made at his own domicil, is no bar to an action for the same debt brought by an ancillary administrator, ap- pointed in the debtor's domicil, even subsequently to the payment. Young s). O'Neal, 3 Sneed's (Tennessee) Bep., 55 ; Anonymous, 2 Am»r. Law Review, 898. Actions against foreign personal representative. 696. A personal representative who after having law- INTERNATIOlirAL CODE. 461 fully obtained possession of assets, becomes domiciled in the territory of any other nation, may be sued as such in its courts by persons entitled to such assets. This rule was applied in favor of a creditor in Baker v. Smith, 3 Met- calfe (Kentucky) Sep., 264 : aud.of the next of kin in Marrion «. Titsworth, 18 B. Monroe {Kentucky) Rep., 597. In Evans v. Tatem, 9 Sergeant & Bawle's [Pennsylvania) Rep. , 359, it was held, however, that mere presence in the foreign State without the acquisition of a domicil there, would be suflScient to found the jurisdic- tion. When judgment of probate court., as to rigM of succession is conclusive. 697. The determination of a court of probate, in re- spect to the right of succession to movables, is con- clusive in the tribunals of other nations, in proceedings for the settlement of the same estate,' only 'when the deceased was domiciled within the jurisdiction of the court at the time of his death. ' Doglioni v. Crissini, Law Sep., 1 House of Lords, 301. ' The parties in interest in the place of principal administration are not bound by a judgment given in the place of ancillary administration. Low V. Bartlett, 90 Massachusetts Rep., 359 ; Ela v. Edwards, 85 Id., 48. Consuls have power to administer on the estates of foreigners or dece- clente domiciled abroad, in the cases provided in Articles 338 and 340. The treaty between the United States and Honduras, July 4, 1864, (13 Z7. 8. Stat, at L., 704,) authorizes the consular officer of the nation of a fereigner dying in the country to which the consular officer is accredited to appoint curators to take possession of his estate, so far as the local laws will permit, for the benefit of the heirs and creditors, giving notice to the local authorities. The treaty between the United States and Paraguay, Feb. 4, 1859,- (13 U. S. Stat, at L., 1096, Art. X.,) allows the consular officer to take charge of the property. Probate of will of property in foreign country. 698, -A. will of a domiciled resident disposing only of property in a foreign country is entitled to probate in the country of residence, for the purpose of clothing the executor with power to take proceedings in the foreign country. To the contrary, see Matter of Coode, Law Rep., 1 Probate & Bworce, 449. 462 OUTLINES OF AN" CHAPTER LIII. ADMIRALTY. Akticlk 699. Extent of admiralty jurisdiction of a nation. 700. " Seas " defined. 701. Rules of decision in extra-territorial torts. 703. Uniform procedure in admiralty. 703a. Civil redress in case of collision. 703b. Criminal proceedings in case of collision. The provisions of the Code in relation to jurisdiction over property, and' the effect of judgments in rem, should seem to be adequate for the pur- pose of fixing the proper limits of the judicial power in cases of admiralty jurisdiction in its international aspects. The distinction between the jurisdiction of ordinary courts and those of admiralty, is mainly impor- tant as a question of municipal law, and even there is rapidly disappear- ing under recent legislation, the tendency of which is towards uniformity of remedies. The admiralty jurisdiction in criminal cases is regulated by Chapter XLIX., on Judicial Power in Criminal Cases. Extent of admiralty jurisdiction of a nation. 699. The admiralty jurisdiction of a nation in civit cases extends, 1. To all acts done upon the seas ; ' 2. To all property constructed for or employed in navigating the seas ; and, 3. To all contracts relating to such property or for services on the seas, and to their incidents, when the persons or property are subject to the jurisdiction as- delined by articles 309 and 312. ' 8tory^s Oonfi. o/i., 433 g ; 433 h. ''Seas" defined. 700. The "seas" mentioned in the last article in- clude : 1. Waters beyond the limits of any nation ; and, 2. Navigable waters, whether tidal or not, in any place within the limits of the nation. The jurisdiction is not limited to tidal waters. Genessee Chief «. Fitzhugh, 13 HowardU. 8. Supr. Gt. Rep., 443 ; Fretz ». Bull, 12 Id., 466 ; 3 Parsons on Shipping, Bk.. 8, ch. I. ; The Eagle, 7 Walla/ie's U. 8. Bupr. Ct. Sep., 15. INTEElfATrONAL CODE. 4(53 Rules of decision in extra-territorial torts. 701. In cases of collision between ships of different nations or other acts of damage to person or property, occurring beyond the jurisdiction of any nation, and in respect to which Chapter XXXIII., on Collision, does not afford a rule of decision, the extent of the remedy in damages to which the injured party is enti- tled, is determined by the law of the forum. By the other provisions of this Code, (Articles 316 and 338,) the Bame rule must be applied to foreigners as to members. Uniform procedure in admiralty. 702. All civil suits in the exercise of admiralty jurisdiction shall be commenced by summons. The cause of action shall be stated in a complaint, and the defense in an answer. The determination of the controversy shall be by a judgment. The provisional remedies, the modes of trial and of executing the judgment, shall be settled by a conference of judges in admiralty, one appointed by each nation, who shall agree upon uniform rules of procedure. See Report of British Judicature Commission, 1869. For a memorandum upon the recent increased jurisdiction and changes in the practice of the English admiralty, see Accounts and Papers, 1867, vol. LVIL, (19.) 702a. In case of collision on the high seas, any one injured in person or property, and the legal represent- ative of any one killed, may seek redress in the admi- ralty court of any country where the colliding ship or the greater part of its freight, or the owner of either, or any master, mariner, or other person complained of, may be found, at any time within three years after the col- lision. The court shall thereupon proceed, as in other cases in admiralty, and in conformity with the proced- ure established pursuant to the last article, to hear and decide the case, and may award such damages or other civil redress as shall be just. But before proceeding to judgment, the court shall address to an admiralty judge of the country to which the person or property 463a OUTLINES or AN" intekitational code. proceeded against belonged at the time of tlie collision, an invitation to sit in the court, in person or by substi- tute, if he will, at a convenient- time and place to be agreed on, and take part in the decision. The judg- ment shall be executed at any place within the ordinary jurisdiction of the court or of the judge invited, and in all other courts shall be held valid and conclusive. 702b. In every case of collision, the party aggrieved, instead of proceeding for civil redress as in the last article mentioned, or in addition thereto, may, with the sanction ,of his own government, and in its name, proceed by a criminal action against any owner, master, mariner, or other person, by whose fault the collision occurred, and in such action the court, being such as is in the last article mentioned, may inflict punishment upon the offender by fine, not exceeding five thousand dollars, or imprisonment, not exceeding five years, or by both such fine and imprisonment. BOOK SECOND. WAR. DrviBiON Thibd. Bblligeirents. Fourth. Allibs. Fifth. Nbutkalb. DIYISION THIRD. BELLIGERENTS. Pakt VII. The Commbncbmbnt op Wab. VIII. The Conduct ' op War. IX. The Termination op War. The adoption of such a Code as is here proposed, contemplates the prolongation, and, if possible, the perpetuation, of a state of Peace, between the nations uniting in its adoption. It is among its chief objects, by defining rights and obligations that are now uncertain, to remove, or at least to diminish, the causes of war ; by reducing, upon common consent, the excessive armaments of modern times, to reduce the temptations to war, and, by the establishment of tribunals of arbi- tration, to render a resort to it unnecessary and wrongful, in ordinary cases of difference. The regulations for these purposes contained in the first Book of the Code, narrow the scope of the regulations necessary for the second Book. The adoption of the system would unite the assenting nations in an alliance for mutual advantage, under which it seems both practicable and safe for them to renounce, as against each other, the most mischiev- ous of the old rights of war ; and to concede to each other the exemp- tions which the most humane of modern treaties have recognized, and the ameliorations of the evils of war for which the most enlightened jurists have contended. The influence of modern civilization has affected the usages of war in two opposite directions. It has increased the deadly character of combat 466 OUTLINES OF AN by scientific improvement of the instruments of war ; while on the other hand, it has diminished the surface upon which war acts in the destruc- tion of life and property, by exempting, to a large degree, non-combat- ants and private property ; and, while increasing the rights and protec- tion of neutrals, has practically increased, also, the stringency, if not the extent, of their obligations to refrain from aiding either party. The best authorities are now discussing the question whether the time has not come when civilized nations should disavow the old maxim' that war makes every subject of one belligerent an enemy of every sub- ject of the other ; and recognize the principle that war is a duel between nations, in which the governments and the persons, impressed with their' military character, are alone to be deemed enemies. This change in the theory of the state of war, has already made great progress among publicists, and is now supported by eminent modern au- thorities, while it has received some practical sanction in the provisions of special treaties. It is submitted that it is both practicable and safe to make the modern doctrine the basis of a general Code. In accordance with these considerations the general principles which* have been followed in the preparation of the Articles of this Book, have- been, 1. That as between the military forces of the belligerents, hostilities^ are sanctioned without other limits than those already recognized by the laws of civilized warfare, as modified by recent general conventions such as those respecting small explosive balls, and the treatment of sick and wounded. One qualification should be added, namely : forbidding the use of false colors and signals, as an act of bad faith ; 3. That nations, when they engage in war with each other, should confine their struggle to military measures ; and so far as possible leave undisturbed all undefended persons and places, all peaceful relations, and modes of intercourse, and all property, public or private, which does not directly subserve the purposes of war ; 3. That those nations which remain neutral, should not only refrain from active assistance, but should exert themselves to prevent their peo- ple from furnishing implements of warfare to either combatant. In ac- cordance with the rule adopted in some recent treaties, and with usage in one or two cases, war material alone is declared contraband, and all other private property not engaged in illegal traffic, is protected from capture. In considering the application of the provisions of this Book, it should be remembered that its object is not to state all the rules of public law which are in force during war, but only those rules unknown in time of peace which war calls into application. By Article 7, in the beginning of Book First, it is declared that the First Book treats of the relations of nations and of their members to each other, except as they are modified by a state of war ; and the Second treats of the modifications in these relations produced by a state of war. Therefore, the provisions for the protection of foreigners and their property which are contained in Book First, are not repeated here ; as they will continue uninterrupted in war as in peace, ex INTERN ATIOKAL CODE. 467 •cept so far as the provisions of this Book would suspend them during ■war. The notes, without attempting to refer to all the authorities, give a suflBcient number to aflFord the reader a convenient clue to the discussions contained in the books concerning the various topics referred to, without burdening him with multiplied references. PART YIL THE COMMENCEMENT OF WAR. Article 703. Provisions of Book on Peace continue in force except as modified. 704. "War" defined. 705. Nations, &c. , are the only parties. 706. Civil war. 707. Insurgents may be treated as belligerents. 708. Insurgents may be recognized by foreign nations. 709. Declaration of war. 710. Response unnecessary. 711. " Reprisal " defined. 712. Negative reprisal. 713. Positive reprisal. 714. Positive reprisal treated as declaration of war. 715. Hostilities before declaration. 716. Positive reprisal in violation of provisions for preservation of peace. Provisions of BooTc on Peace continue in force ex- •cept as modified. 703. The provisions of Book First of this Code con- tinue in force, notwithstanding the existence of war, except so far as it is otherwise expressly provided therein, or as they are modified by the provisions of this Book. "TFaT-" defined. 704. The term "war," as used in this Code, desig- nates a hostile contest at arms, between two or more nations,' or communities claiming sovereign rights.' Every such nation or community is termed a bellig- •erent. 32 468 OUTLINES OF AN ' Different definitions liave been given by the writers, for different purposes. See a number of definitions collected by FiorS Nowoeau Broit International, Ed. of Pradier FodSre, v. 3, p. 239. He contends for a definition excluding unjustifiable war; but obviously the definition adopted in this Code must include every conflict which gives rise to, the peculiar rights and duties of neutrals and belligerents. See also Titiiss' Law of Nations, pt. II., p. 43, where various definitiohs are discussed. It seems unnecessary to distinguish between ordinary public wars, and mixed, civil, or social wars (see Oroiius, Jure Belli ac Paeis, liv. 1, ch. 3), any further than is done by Articles 705-708. 2 The parties belligerent in a public war are independent nations. But it is not necessary to constitute war that both parties should be acknowl- edged as independent nations or sovereign States. A war may exist where one of the belligerents claims sovereign rights as against the other. Prize Cases, 3 Black's U. S. Supr. Ct. Rep., 667. Revolutionary or insurrectionary wars, so far as necessary to be pro- vided for in this Code, are the subject of Articles 7.05-708. Nations, Rep., 19. Jurisdiction of military tribunals over foreigners. 719. Subject to the restrictions imposed by its own laws, the military tribunals of a nation are competent to punish foreigners : 1. When they are impressed with the military char- acter of such nation, as defined by article 736, and commit oflfenses against its military law : or, 2. When they are enemies, active or passive, as de- fined by articles 746 and 747, and violate the provisions of Part VIII. of this Code, and fall into the power of such tribunals. But the punishment inflicted can not be greater than that affixed for offenses of the same grade, when com- mitted by members of the nation. Whether their power shall or shall not extend to civilians or passive enemies who are members of the same nation, and to treason and such offenses which are cognizable by the civil courts, is a question of local law. For the rules on this subject adopted by European nations, see Maurice Block, Diotionaire de I'adm. Fr. s. roe etat de siege, referring to the law of 1849. Escriche, same title. The American rules are discussed by Gushing, in 8 Opinions of United States Attorney s-Oeneral, 366 ; and see Malleck, Intern. Lam and Laws of War, p. 373, § 25. In the Milligan Case, (4 Wallace's U. 8. 8upr. Ct. Rep., 1,) it was held that a civ- ilian could not be subjected to military trial. And in 13 Opinions of TT. 8. Attorneys-General, p. 128, it was declared that a citizen not in the military service can not be tried by military commission in Washington, for an offense committed in New York, within the jurisdiction of the civil courts, which were in full possession and exercise of their powers. Mutilation. 720. Mutilation or disfigurement of the person musi not be inflicted as a punishment. By the rules heretofore existing, branding is allowed. 476 OUTLINES or an 'Violations of provisions of the Code for protection of enemies or neutrals. 721. The military authorities of a belligerent are bound to use all their power to enforce obedience, by all persons under their control, to those provisions of Part YIII., and of Division "V- of this Code, which are for the protection of enemies or neutrals ; and the na- tion is bound, through its military or other tribunals, to punish those guilty of violating the same. ' Such pun- ishment must be at least equal to that prescribed for offenses of the same grade against itself or its members. ' Bluntschii, Droit International Codifii, § 575. Indemnity for excesses. 722. A nation is bound to afford all the indemnifi- cation possible for crimes and excesses committed by its forces in violation of the laws of war, or for want of discipline. See Halleeh, Interii. Law and Laws of War, p. 443, § 32. No nation can treat with cruelty or deprive of their property the members of another nation, whom some calamity, such as the distress or stranding of a ship, throws within its borders, without wrong and Just claim of redress. Woolsey, International Law, § 59, p. 94 ; and see M., § 135, p. 314. Justification for violation of provisions of the Code for protection of enemies or neutrals. 723. The orders of a superior oflicer are a justifica- tion to an inferior officer or to a soldier, in disobeying the provisions of Part YIII.,- and of Division V. of this Code. The superior is, however, responsible. "An officer or soldier, acting under the orders of his superior, not being' necessarily and manifestly illegal, would be justified by his orders." Keighley «. Bell, 4 Foster & MnXason's Bep., 790. INTEENATIOKAL CODE. 477 CHAPTER LY. MARTIAL RULE. AbtiCLB 724. Martial rule and its effect. 735. Martial rule needs no proclamation. 736. Consuls. 7B7. Duty of magistrates and civil oflScers. Martial rule and its effect. 724. Martial rule is the exercise of the will of the commander.' It must nevertheless be exercised within the limits of the provisions of this Book of the Code, and of the military law to which the forces are subject ; but within these limits it suspends all laws/ so far and so long' as they come in conflict with it. Martial rule, or the law applicable to tlie state of siege, is regulated 'by positive law, in tlie Frenclx and other continental systems. See M. Slock, Die. de l' administration Francaise ; 8 Opinions of U. 8. Attorneys- General, 3fi6 ; Halleck, Int. Law and Laws of War, p. 374, § 36. But -these regulations seem unnecessary in an International Code, except so ■far as their subjects are embraced in the provisions of this Chapter. ' Argument in the Milligan CJase, Washington Reporter, May 7, 1866 ; -and the decision of the court, 4 Wallace's IT. 8. 8upreme Ot. Rep., 1. The will of the commander is ordinarily called martial law, but in tl;e proper sense it is not law at all. Wellington, in one of his despatches, from Portugal in 1810, explained it in this manner : " I think it would be desirable to define with precision our ideas re- specting the establishment of military law, before we determine to alter the established law of the country in any case. " The following questions are worth consideration and decision on this topic. What is military law? Military law, as applied to any persons, excepting the officers, soldiers, and followers of the army, for whose government there are particular provisions of law in all well regulated -countries, is neither mor6 nor less than the will of the general of the Army. He punishes either with or without trial for crimes either de- clared to be BO, or not so declared by any existing law, or by his own ■orders. This is the plain and common meaning of the term military law. Besides the mode of proceeding above described, laws have been made 478 OUTLINES or AN" in different countries, at different times, to establish and legal izf a des- cription of military constitution. " The commander-in-chief, or the government, has been authorized to proceed by military process — that is, by court martial, or council of war — against persons offeading against certain laws, or against their own orders, issued generally for the security of the army, or for the es- tablishment of a certain government or constitution odious to the people- among whom it is established. ■'Of both descriptions of military law there are numerous instances in the history of the operations of the French army during the revolu- tion ; and there is an instance of the existence, both of the Srst men- tioned description, and of the last mentioned, in Ireland, during the re- bellion of 1768, when the people were in 'insurrection against the gov- ernment, and were to be restrained by force." And in his speech on the Ceylon afEair, he repeats the description : " I contend that martial law is neither more nor less than the will of the general who commands the army. In fact, martial law means no- law at all ; therefore, the general who declares martial law, and com- mands that it shall be carried into execution, is bound to lay down dis- tinctly the rules, and regulations, and limits, according to which his will is to be carried out. Now, I have, in another country, carried out martial law — that is to say, I have governed a large proportion of the- population of a country by my own will. But then what did I do ? I de- clared that the country should be governed according to its own national law, and I carried into execution that, my so declared will." See also Halleek Intern. Law and Laws of War, p, 373, § 35 ; Forsyth's^ Cases and Opinions in Constitutional Law, 307-316 ; and Appendix. - " Martial law is quite a distinct tiling from ordinary military law, and is founded on paramount necessity, and proclaimed by a, military chief." 1 Kent's Commentaries, 377. Hallam, {Constitutional History,. I., 336, 3rd ed.,) says, " It has been usual for all governments, during aru actual rebellion, to proclaim martial law, or the suspension of eivil juris- diction." It supersedes all civil proceedings which conflict with it, bat. does not necessarily supersede those which do not. Boumer's Law- Dictionary, Art. Military Law. " It is, in fact, the law of social self-defense*, superseding, under the- pressure, and therefore under the justification, of an extreme necessity, the ordinary forms of justice. Courts-martial under martial law, or rather during the suspension of law, are invested with the power of ad- ministering that prompt and speedy justice in cases presumed to be- clearly and indisputably of the highest species of guilt. The object is self-preservation by the terror and the example of speedy justice. But courts-martial which condemn to imprisonment and hard labor belie the necessity under which alone the jurisdiction of courts-martial can law- fully exist in civil society." Opinion of Mr. Sergeant Spankie, found in ' Sough on Courts-Martial. "Martial law is merely a cessation, from necessity, of all municipal* INTERNATIONAL CODE. 479' law, and what necessity requires it justifies. An alien amy hostilely invading a territory while in arms, might lawfully be put to death ; and when taken prisoner, if his immediate execution were necessary to the suppression of insurrection, he might be executed immediately, without any reference to municipal law. But the insurrection being quelled and tranquility restored, and the ordinary tribunals proceeding regularly in the administration of justice, an alien amy wlio had been taken in arms ' could not be lawfully put to death, either with or without the form of ' being tried by a court-martial ;" but must be dealt with according to the regular course of justice. ..." This case is clearly distinguishable from that oi a, foreigner assisting in a civil war. Where an insurrection agaiiiht a government has become so formidable as to assume the aspect of an equally-balanced civil war, the laws of war are to be observed be- tween the government and the insurgents ; and native-born subjects taken prisoners could not properly be tried as traitors. And even were an alien amy in the ranks of the insurgents, he would be dealt with as a native- born subject." Opinions of Sir John Dodsou, Sir John Campbell, and Sir R. M. Rolfe,in Casei and Opinions in Gonstitutional Lawfiy Forsyth, p. 199. Martial law can never be enforced for the ordinary purposes of civil or even criminal justice, except, in the latter, so far as the necessity arising from actual resistance compels its adoption. Opinions of Sir John Campbell, and Sir E. M. Wolfe, in Cases and Opin. in Const. Law, by Forsyth, p. 198. The right conclusion upon the whole matter seems to be this : " Mar- tial law may be justifiably imposed as a terrible necessity, and an act of self-defense ; under it there is a suspension of civil rights, and the ordi- nary forms of trial are in abeyance. Under it a man in actual armed re- sistance may be put to death on the spot, by any one acting under the orders of competent authority ; or, if arrested, may be tried in any man- ner which such authority shall direct. But if there be an abuse of the power so given, and acts are done under it, not bona fide to suppress re- bellion or in self-defense, but to grratify malice or in the caprice of tyranny, then for such acts, the party doing them is responsible. Forsyth's Cases a:nd Opin. in Const. Law, p. 314 ; and see Finlason's Commentaries on Martial Law, London, 1867. Military necessity includes all those measures which are indispensable for securing the ends of the war, at d which are not forbidden by this Code, or the military law of the power by which the measures in question are taken. See Lieber's Instructions for the Government of Armies of the United States, ^1f 6, 7. Interference of the military power with the persons or property of others than those impressed with the military character, actually engaged in unlawful hostilities, or spies, or pirates, when called in question in the civil tribunals, can only be justified on the ground of a danger im- mediate and impending, or a necessity urgent for the public service, such as will not admit of delay, and when the aption of the civil authority would be too late in providing the means which the occasion calls for. Harmony's Case, 13 Howard's V. 8. Supr. Ct. Sep., 116. 480 OUTLINES OF AW The creation of a commission or board to decide or advise upon tlie subject gives no increased sanction to the act. As necessity compels, so that necessity alone can justify it, The decision or advice of any num- ber of persons, whether designated as a military commission, or board of officers, or council of wai% or as a committee, proves nothing but greater : deliberation ; it does not make legal what would otherwise be illegal. Argument in Milligan's Case, WasJiington Reporter, May 7, 1866. ^ Compare Johnson v. Duncan, 3 Martin's (Louisiana) Sep., 520,Lieber'.i Instructions for the Qovernment of Armies of United States, T 6. The. municipal laws of a country occupied by a conquering power • remain in force until suspended, superseded, or otherwise changed by order of the conqueror. Wingfield v. Crosby, 5 GoldweU's {Tennessee) Rep., 341; Rutledge B.Fogg, Z Id., 554, and authorities there cited; . Campbell v. Hall, Lofft, 655 ; Cowper, 304. Martial rule may be expressly continued by treaty of peace, but only to the extent of occupation. Martial rule needs no proclamation. 725. Martial rule is justifiable only by an absolute and overruling necessity. When such necessity exists, the rule may be exercised, without a previous proc- lamation, and in any place actually possessed by a belligerent, whether an enemy or friend,' but in no other place ; and it is always exercised at the peril of the commander. See Bluntschli, Droit Intern. Codifie, % 539 ; Lieier's Instructions, If 1. Although some authorities say that a proclamation is necessary, it should not be so regarded. If a general or commander-in-chief has the right to enforce martial rule upon those who are not members of his army, he may enforce it without as well as with a proclamation. All the purpose which that effects is to give notice of the fact. There are, however, cases in which a general may use force for other purposes than to compel submission in the opposite army, and obedience in his own. The maxim which gives the reason and the extent of the power, is " Necessitas quod cogit, defendit," This is a maxim not peculiar in its application to military men ; it applies to all men under certain circumstances. Private persons may lawfully tear down a house, if necessary, to pre- vent the spread of a fire. But this is not because there is such a thing as fireman's law, but because necessity requires it. Indeed, the maxim is not confined in its application to the calamities of war and conflagra- tion. A mutiny, breaking out in a garrison, may make necessary for its suppression, and therefore justify, acts which would otherwise be un- INTERNATIONAL CODE. 4S1 justifiable. In all tlaese cases, however, the person acting under the pressure of necessity, real or supposed, acts at his peril. The correctness of his conclusion must be judged by courts and juries, whenever the acts and the alleged necessity are drawn in question. Argument in the Mil- ligan Case, Washington Reporter, May 7, 1866. A declaration of martial law, even in one's own country, is the mere announcement, and not the creation of the fact. See Halleck, Int. Law nnd Laws of War, p. 372, § 24 ; and opinions of Sir John Campbell and Sir B. M. Bolfe, in Cases and' Opinions in Constitutional Laic hy Forsyth, p. 198. ' See the Milligan Case, 4 Wallace's V. S. Supr. Ct. Hep., 1. Consuls. 726. Consuls are subject to martial rule in the same «ases, and to the same extent, as other persons. Lieber'a Instructions, T[ 8. Duty of magistrates and ciml officers. 727. It is the duty of the civil officers and other residents of an invaded country to yield obedience to martial rule, within the limits of the provisions of this Book, so long as the military possession continues, under pain of expulsion ; but oaths of allegiance can- not be required. ' ' By the rules heretofore existing, the commander of a hostile force may require the magistrates and civil officers of the enemy's country within his occupation, to take an oath to yield allegiance to his nation, so long as its occupation continues. Lieber'a Instructions, If 36. But it is submitted that the multiplication of oaths is needless, and the object is better attained by a positive requirement of law. The obligations imposed on the non-combatant inhabitants of a sec- tion of country passed over by an invading army, cease when the military occupation ceases ; and any pledge or parole given by such persons, in regard to future service, is void. General Orders of TJ. S. War Depart- ment, 1863, V. 2, p. 237, No. 207, § 4. 482 OUTLINES OF A.N CHAPTER LYI. MILITAET OCCUPATION. The provisions of this Chapter relate to possession under martial rule- pending hostilities. The rules applicable to cases of completed conquest rest upon different principles, and are stated in Part IX., upon The Tee- MINATION OF WaR. Aeticlb 728. " Military occupation " defined. 729. Allegiance suspended by military occupation. 730. Limit of power of belligerent. 731. Civil and criminal law within military occupation. 733. Persons held to service or labor. 733. Effect of reconquest on civil and political rights. " Military occupation''' defined. 728. Military or belligerent occupation, as nsed in this Book, is a possession by the military power of a belligerent, sufficiently firm to enable such belligerent to execute its will within the limits of the occupation, either by force, or by acquiescence of the people, for an indefinite future, subject only to the chances of war.' But the modification of such occupation, resulting from an armistice, or other compact with the enemy, does not affect the power of the belligerent over persons and property within such limits, further than is pro- vided by this Book, or by the compact itself." ' Dana's Wheaton, Mem. of Intern. Lam, § 347, note 169, p 436 ; HalU leek. Intern. Law and Laws of War, p. 778, &c., and authorities cited. * See Article 778, as to the effect of armistice or truce. Allegiance suspended hy Tnilitary occupation. 729. The allegiance of the members of a belligerent nation resident within the limits of the military occu- INTERNATIONAL CODE. 483 pation of the enemy, is suspended, so far as it is in- consistent with the lawful authority of the enemy. Dana's WTieMon, Ehm. of Intern. Law, note 169 ; Halleck, Intern. Law and. Laws of War, p. 791, and authorities cited. Limit of power of belligerent. 730. Except as otherwise provided in this Book, the authority of a belligerent, occupying the territory of the enemy, extends no further and no longer than his actual power extends. Dana's Wheaton, Elem. of Intern. Law, note 169. Even the retroaction of completed conquest only goes so far as to give permanency to the acts of the conquerer, done during military occupation. Halleck, Intern. Law and Laws of War, p. 815. See Part IX., on The Tbemination of War. Civil and criminal law within military occupation. 731. The civil law of the people of a territory which is held by a hostile military occupation, remains un- changed, until modified in accordance with the organic law, or by a treaty of peace ; but the hostile nation may introduce its own criminal law, within the limits ■of its occupation. Suggested by Twiss, LoM of Nations, Part II., p. 128. Persons held to sermce or labor. 732. The status of persons, and the obligations of service or labor, are not affected by the presence of a belligerent, who may nevertheless for military purposes suspend such relations during the continuance of the military occupation. lAeber, {Instructions, Tf^f 42, 43) says that slavery is abolished by thb invasion of a free army ; but this is not sustained by the authorities, o. the principles of international law. " In barbarous times, the laws of war authorized the reduction to slavery of a conquered people. These laws have been softened .under the influ- ences of Christianity and civilization, till now it is the settled public law ■of the Christian and civilized world that the conquest of a nation hy an- other makes no change in the property or the personal rights and relations of ■the conquered people. ' The people change their allegiance,' says Chief Justice Marshall, (7 Pet, 87, U. S. «. Churchman ;) ' their relations to S3 484 OUTLINES OF AK their ancient sovereign are dissolved, but their relations to each other and their lights of property remain undisturbed.' One change only is effected, and that is, that one sovereign takes the place of the other. In a civil war sovereigns are not changed, unless the rebellion is successful." Ar- gument in McCardle Case, Forsyth's Cases and Opinions in Constitutional Law, pp. 491, 519. Effect of reconquest on civil and political rigM's. 733. When a belligerent regains and maintains possession of territory taken from Ms control during war : 1. All the acts of political administration done by order of the invader, and all modifications made in the constitution and the political relations of the people, unless made by the will and consent of the nation, cease to be in force :' 2. All executed transactions, whether transfers of property,' judgments rendered, or other acts, if con- sistent with the organic law of the nation, and lawful at the time when they took place, remain valid. ' MorS Nowoeau Droit International, v. 2, p. 352. ' Mori says, these transactions are not valid by law, but ouglit to be confirmed by the sovereign, lb. And see Bluntschli, Droit Intern. OodifiS, § 731. The exception in case of an expulsion of the enemy by a third power, in which case the authority of such power is held to some extent para- mount, is not here recognized. See Bluntschli, § 729. As to acts of courts of an insurgent power, see Hickman «. Jones, 9 Wallace's U. 8. 8upr. Ot. Sep., 197. TITLE XXXIII. HOSTILITIES. Chaptek LVII. Wh6 may wage hostilities. LVIII. Against whom hostilities may be waged. LIX. The instruments and modes of hostilities. LX. Truce and armistice. LXI. Medical service. LXII. Religious service. LXIII. Prisoners. INTERNATIONAL CODE. 485 Chafteb LXIV. Hostilities against property, LXV. Contraband of war. LXVl. Visitation, search and capture. LXVII Blockade. LXVIII. Prize. LXIX. Effect of a state of war on obligations of na- tions and their members. LXX. Effect of a state of war upon intercourse. LXXI. Effect of a state of war upon the administration of justice. CHAPTER LVII. WHO MAT WAGE HOSTILITIES. AbticIiE 734, 735. Authority to commit hostilities. 736. Persons impressed with military character. 737. Temporary want of authority. 738. Compulsory service. 739. Savage allies. 740. Defensive hostilities. 741. Privateering abolished. 742. Punishment of privateering. 743. Pirates and brigands. Authority to commit hostilities. 734. All acts of hostility are unlawful/ except when committed under authority of a belligerent," or in self- defense. 1 Talbot «. Jansen, 3 Dallas, U. S. Supr. Ot. Rep., 133, 160. An alien, a native of a State at peace with Great Britain, and not in the service of any State at war with that government, who levies war against it within its dominions, is deemed guilty of treason, although he enters it in a hostile manner. Forsyth's Gases and Opinions in Gonstitu- iion/U Law, p. 199. The authority is usually that of the nation of which the individual is a member ; but the principle includes the authority of any nation, as in the case of mercenaries, or persons of one nation, enlisting in the mil- itary service of another, against a third. War should be regarded as subsisting between nations, not indi- viduals. JSluntschli, Droit Intern. GodifiS, § 530, &c. Puffendorf, (bk. 8, ch. 6, § 21,) observes that it is " a part of the war to appoint what persons are to act in a hostile manner against the enemy. 486 OUTLINES OF AN and how far ; and, in consequence, no private person hath power to make devastation in an enemy's country, or to carry ofiF spoil or plunder, with- out permission from his sovereign ; . . . for to be a soldier, and to act offensively in a hostile manner, a man must be commissioned by public authority." And see Gases and Opin. in Const. Lam, iy Forsyth, p. 479. War is waged between governments by persons whom they authorize, and is not waged against the passive inhabitants of a country. Wool- sey's International Lam, § 125, p. 314. Portalis,va. his speech at the installation of the council of prizes, (see Sefter, § 119,) said : " The right of war is founded on this, that a people, in the interests of self-conservation, or for the sake of self-defense, will, can, or ought to use force against another people. It is the relation of things, and not of persons, -pfhich constitutes war ; it is the relation of State to State, and not of individual to individual. Between two or more belligerent nations, the private persons of which these nations consist are enemies only by accident ; they are not such as men, they are not even as citizens, they are such solely as soldiers." To the same effect are Talleyrand's words in a dispatch to Napoleon, of November 30, 1806, (see Woolsey's Intern. Law, § 130, note, p. 335.) " Three centuries of civilization have given to Europe a law of nations, for which, according to the expression of an illustrious writer, human nature can not be sufficiently grateful. This law is founded on the prin- ciple, that nations ought to do to one another in peace, the most good, and in war, the least evil possible. ' ' According to the maxim that war is not a relation between a man and another, but between State and State, in which private persons are only accidental enemies, not such as men, nor even as members or sub- jects of the State, but simply as its defenders, the law of nations does not allow that the rights of war, and of conquest thence derived, should be applied to peaceable unarmed citizens, to private dwellings and prop- erties, to the merchandise of commerce, to the magazines which contain it; to the vehicles which transport it, to unarmed ships which convey it on streams and seas ; in a word, to the person and the goods of private individuals. "This law of war, born of civilization, has favored its progress. It ia to this that Europe must ascribe the maintenance and increase of her proa perity, even in the midst of the frequent wars which have divided her." The same. 735. Subject to article 737, no persons other than those impressed with a military character may lawfully wage hostilities, except in self-defense. Haileck, Int. Law and Laws of Wa/r, p. 386 ; Yattel, Droit des Oens b. 3, ch, 15, § 334 ; and Id., ch. 5, § 70 ; 1 Gallison's U. 8. Ore. Ct. Bep. 563 ; Lawrence's Wheaton, Elements of Intern. Lam, pp. 636, 637, pt. iv., «h. ii., g§ 8,9 ; Dana's Wheaton, §§ 356, 357. INTEKNATIONAL CODE 487 Halleck, (above,) says tliat the hostile acts of hands of men, self-organ- -ized and self-controlled, are not belligerent acts, but crimes. There must »be, as stated in Article 734, the authority of a power capable of making •war, to justify any person in committing ofEensive hostilities. Persons impressed with military character. 736. The following persons and no others are deemed to be impressed with the military character : 1. Those who constitute a part of the military' forces of the nation ;° and, 2. Those who are connected with the operations thereof, by the express authority of the nation." ' "Military" is defined by Article 717. ^ LavyreTiee'g Wheaton, Elem.' of Intern. Law, p. 627, pt. iv., ch. ii., § 8 ; Dana's Wheaton, § 356 ; BluntscMi, Droit Intern: Codifle, § 569. ' Wheaton, as above. This vcill include subsidiary forces ; camp fol- lowers, &c. In modern warfare partisan and guerrilla bands are regarded as outlaws, and may be punished by a belligerent as robbers and mur- derers. MaUeck, Int. Law and Laws of War, 386, 387 ; Heffter, Droit In- ternational, § 136 ; 3 Phillimore's Intern. Law, § 96 ; Lieber's Instructions for the Government of Armies of the United States, section iv. But if employed by the nation, they become part of its forces. Halleck, p. 886, .§8. Mori, on this point says that the army, which may consist of regulars, volunteers, mercenaries, troops of allies, &o., must be organized, dis- ciplined and subjected to the command of the public authority. Fiore, Nouveau Droit International, v. 2, p. 277. As to the status of frane-tireurs during the Franco-German war, 1870, Count Bismarck declared to the French government that " only men who can be recognized within gunshot, as soldiers, shall be considered and treated as such," — and "that all those who, not being on all occasions and at a proper distance recognizable as soldiers, may kill or wound any Prussians, shall be tried by court-martial." Foreign Relations of the .United States, 1870, p. 143. Temporary want of authority. 737. Inhabitants of a country invaded, who sponta- neously unite in arming to oppose invasion,' or who, under military organization," and for political reasons, without motives of private gain, take part in hostilities ■existing between belligerents," are not to be treated as -criminals, unless after being required by the enemy to lay down their arms or to join the regular military iorces within a reasonable time, they fail to do so. 33 488 OUTLIN"ES OF AN ' HaUeek, {Int. Law and Laws of War, p. 388,) says the proper dis- tinction in relation to inhabitants rising en masse, was made by Welling- ton, in his invasion of the South of France, (1814.) He required the- peasants engaged in partisan warfare to take arms openly and join Soult, or stay peaceably at home. 'Persons waging offensive hostilities on land, without express au- thority of a belligerent, should be treated as criminals if they act without military organisation, whatever the circumstances or motives. ' BluTdsehli, (Droit International Uodifli, § 570, and note,) inclines to- the opinion that an unauthorized corps, which, believing they have a just cause, adopt a military organization, and fight for a political end, are to be treated as lawful enemies, not criminals : and he instances the corps of Garibaldi, in the Italian wars of 1859 and 1866, and in the ex- peditions of 1860 and 1867. The above Article would allow this, subject to the right of the enemy to require them to join the forces. Lieber, (Instructions, T[ 85,) lays down a stricter rule.. He says, that " war-rebels are persons within an occupied territory who rise in arms against the occupying or conquering army, or against the authorities es- tablished by the same. If captured, they may suffer death, whether they rise singly, in small or large bands, and whether called upon to do BO by their own, but expelled, government or not. They are not pris- oners of war ; nor are they, if discovered and secured before their con- spiracy has matured to an actual rising, or to armed violence. Compulsory service. 738. Except as provided in article 368/ a nation can not exact military service from any persons but its own members. ' The reference is to the Article in the Book on Peace, which regu- lates the obligation of military service on the part of foreigners. The inhabitants of a conquered territory are not deemed members of the victorious nation, within the meaning of this Article, except when the latter, after complete conquest, has proclaimed its intention and manifes- ted its power to hold and annex such territory. Lieber't Instructions, ^% 23, 93 ; Bluntsehli, Droit International OodiflS, § 576. See Part IX., concerning The Tbrminatiok of War. Savage allies. 739. The employment, against a civilized enemy, of savage allies, who are not subjected to the rules of war, contained in this Code, and to the military law of the employing power, is unlawful. This seems to be the principle recognized on this subject. Dana, {Wheaton, Mem. of Intern. Law, § 343, note 166,) says, that the INTEENATIONAL CODE. 489 employment, though open and acknowledged, of savage allies who do not recognize the laws of war and of nations, against a, civilized enemy, is discountenanced by the best jurists and statesmen of modern times. But it is not a valid objection that individual soldiers are of a bar- barous or pagan religion, when they are under the responsible command of officers of a civilized nation, and subjected to the articles of war. • Woolsey, {International Law, % 127, p. 317,) says, that "troops who are accustomed to an inhuman mode of warfare, and belong to a savage race, can not be trusted to wage war according to the spirit of humanity, and ought not to be employed." Defensive hostilities. 740. Subject to article 868, defensive hostilities, on sea or land, though, without public authority, are lawful. Halleek, Intern. Lam and Laws of War, p. 391, and authorities there cited ; Lawrence's Wheaton, Mem. of Intern. Law, pt. iv., ch. ii., § 8, p. 627 ; Dana's Wheaton, § 356. Privateering abolished. 741. Privateering is and remains abolished ; and offensive hostilities at sea can only be waged by the public armed ships of a belligerent. ' Conference of Paris, 1856. Nearly all the nations of Europe have acceded to this rule ; see preliminary note to Chapter LXIV., concerning Hostilities against Pkopbktt. The United States have always been willing to adopt it, if coupled with the exemption of private property not contraband. By the convention between the United States and The Dominican Republic, Feb. 8, 1867, Art. XXV., 15 U. 8. Stat, at L. 180. Venezuela, Aug. 27, 1860, " XXV., 12 id, 1143. Bolivia, May 13, 1858, " XXV., 12 i(?., 1Q03, it is provided, that, no member of either nation shall apply for or talse any commission or letters of marque, for arming any ship or ships to act as privateers, against the other nation, or against its citizens, people, or inhabitants, or any of them, or against the property of any of its in- habitants, from any prince or State with which such other nation shall be at war ; and if any member of either nation shall take such commis- sion or letters of marque, he shall be punished according to their respec- tive laws. And in the treaty between the United States and Guatemala, March 3, 1849, Art. XXV., 10 U. 8. Stat', at L., (Tr.,) 1, it is provided that such persons may be treated aspirates. Similar provisions are to be found in many other modern treaties. 490 OUTLINES OP AK Punishment of privateering. 742. A private sMp, waging offensive hostilities whether with or without a commission from a nation, is a piratical ship ; and all persons committing such hostilities are punishable as pirates. Depredations on the high seas, without authority from any sovereign State, are acts of piracy. Lawrence's Wheaton, Elements of Intern. Lwie, p. 246, pt. II., ch. II., § 15 ; Dana's Wheaton, § 132. If privateering be not abolished it ought to be declared that, " Any ship which takes a commission from any other power than the nation whose character it bears, as defined by Chapter XX., on National Chab- ACTEE QF Shipping, is a piratical ship, and all persons committing hos- tilities under such commission, are punishable as pirates by any nation. See Ealleck, Intern. Lom db Lams of Wa/r, p. 396 ; and the treaty of 1786, between France and Great Britain. It is plain, that taking a commission from each of two belligerents is piracy. 1 PhUlimore's Intern. Law, % 358. See also Lawrence's Wheaton, pp. 250-254, note 80. Forsyth's Gases and Opinions in Gonstituiional Law, p. 116. Taking a commission from both of two allied nations against a com- mon eneiny is equally condemned by Kent, {Gommentaries, vol 1, p. 100 ; citing as authorities for this rule, Valin's Oom., tome 2, 235-286 ; Byn- kershock, c. 17 ; Sir L. Jenkins' Works, 714 ;) although MaMeek, (p. 396,) makes a distinction here, and holds that this is not piracy. The taking of a commission from one belligerent by a neutral ship ought equally to be forbidden, according to Vattel, Droit des Gens, bk. 3, ch. 15, § 229. An act of Congress of the United States, prohibits citizens to accept within the jurisdiction of the United States a commission, or any person not transiently within the United States to consent to be retained or en- listed, to serve a foreign State in war against a government in amity with the United States. It likewise prohibits citizens from being concerned with- out the limits of the United States, in fitting out or otherwise assisting any private vessel of war, to cruise against the subjects of friendly powers. Act of Congress, April 20, 1818, ch. 83, p. 100. And see Kent's Gomment- a/ries, p. 100. Similar prohibitions are contained in the laws of other coun- tries. See the ' ' Austrian Ordinance of Neutrality," Aug. 7, 1803, Arts. 2, 3. The foreign enlistment acts of Great Britain and the United States, which are permanent statutes, impose severe penalties on citizens or res- idents, who receive commissions, equip privateers, or enlist men for service in any foreign war. 9 U. S. Stat at L., p. 175. The above rule would include all three classes of cases. Pirates and brigands. 743. Pirates and brigands are criminals not entitled INTERNATIONAL CODE. 491 to the protection extended to enemies by the laws of war. A military organization is not enough. BluntschU, Droit International GodifiS, % 513. If, however, such forces join, and are received by the belligerent power, they become enemies. Partisans, says Lieber, (Imtructions, ^ 81,) are soldiers armed and wearing the uniform of their army, but belonging to a corps which acts detached from the main body, for the purpose of making inroads into the territory occupied by the enemy. If captured they are entitled to all the privileges of prisoners of war. Men or squads of men, who commit hostilities, whether by fighting or by inroads for destruction or plunder, or by raids of any kind, with- out commission, without being part of the organized hostile army, and without sharing continuously in the war, but who do so with intermit- ting returns to their homes and avocations, or with the occasional as- sumption of the semblance of peaceful pursuits, divesting themselves of the character or appearance of soldiers, such men or squads of men, are not public enemies, and therefore, if captured, are not entitled to the privileges of prisoners of war, but should be treated summarily as high- way robbers or pirates. CHAPTER LVIII. AGAINST WHOM HOSTILITIES MAT BE WAGED. Abticle 744. "Enemy" defined. 745. Individual enemies. 746. " Active enemies " defined. 747. ' ' Passive enemies " defined. 748. Active enemies resisting with arms, 749. Non-combatants. 750. Passive enemies are inviolable. 751. Passive enemies, sick and wounded leaving armed place. 752. Disarming places. 753. Persons communicating with the enemy. ^^ Enemy" defined. 744. Except where a different intent plainly ap- pears, the term " enemy," as used in this Code, without qualification, designates the hostile nation or commun- ity, and all individuals identified with it, as active enemies, according to. the definition of article 746. 492 OUTLIH^ES OF AN Individual enemies. 745. Individuals, regarded as enemies, are either, 1. Active ; or, 2. Passive. " Actitie enemies " defined. 746. Tlie following persons, and no others, are deemed active enemies : 1. Those impressed with a military character, by the belligerent,' as defined by article 736. 2. Those who, not being impressed with such char- acter, are unlawfully waging hostilities ; 3. Those who unlawfully give aid and comfort to the opposing belligerent ;° 4. Spies ; and, 5. Pirates. ' If a soldier of foreign origin take service in the standing army of a nation, be becomes, for the time of his service, a member de facto of the nation, for all belligerent purposes. Twiss, Law of Nations, pt. II., p. 81. ' The phrase " aid and comfort to the enemies " of the nation, alo)ie, does not include compulsory assistance, nor service in purely civil func- tions ; nor mere expression of opinion, nor mere acts of charity, done ■with intent to relieve immediate suffering, and not in aid of the cause. It designates overt acts, done with intent to further the war. 12 Opin- ions of U. 8. Attorneys-General, pp. 160, 304. Won-combatants, who make forcible resistance, or violate tne rules of warfare, give military infor- mation to their friends, or obstruct the forces in possession, are liable to be treated as combatants. Dana's Wheaton, Elem. of Intern. Law, § 345, note 168 ; see also, Woolsey's Intern. Law, § 130. It is not essential to constitute giving aid and comfort, that the effort should be successful, and actually render assistance. Overt acts, which, if successful, would advance the interest of the enemy, amount to aid and comfort. United States B. Greathouse, 3 Abbott's United States Re- ports, 364. ^^ Passive enemies ^^ defined. 747. Passive enemies are all members of the hostile nation, or other belligerent community, and all domi- ciled residents therein, who are not active enemies. Active enemies resisting with arms. 748. Subject to the restrictions contained in this INTEENAIIOITAL CODE. 493 IBook, it is lawful for a belligerent to attack and kill or :subdue active enemies, while they are resisting with .«.rms in their hands. The rale that hostilities can only be waged, on the territory of a bel- ligerent, and on the high seas, or in other places not within the jurlsdic- -tion of a neutral nation, is contained in the provisions of Division V., ■concerning Neutrals. Non-comhatants. 749. Persons impressed with the military cnaracter, ■whose duty does not require them to take part in hos- tilities, such as those employed in judicial, commissary and medical departments, are exposed to the dangers •of general hostilities, but can not lawfully be separately attacked, so long as they do not take part in actual hos- tilities. Bluntsehli, Droit International Oodifie, § 578. Passive enemies are inviolable. 750. Passive enemies cannot be made the objects of hostilities,' except as provided in this Title,' or inci- •dentally when they are personally involved in the con- sequences of contests with active enemies. ' " No use of force against an enemy is lawful, unless it is necessary to -accomplish the purposes of war. The custom of civilized nations, founded upon this principle, has therefore exempted the persons of the sovereign iand his family, the members of the civil government, women and child- ren, cultivators of the earth, artisans, laborers, merchants, men of science and letters, and generally, all public or private individuals engaged in the ordinary civil pursuits of life, from the direct effect of military opera- ■tions, unless actually taken in arms or guilty of some misconduct in vio- lation of the usages of war by which they forfeit their immunity." Lawrences Wheaton, Mem. of Intern. Law, pp. 593-596 ; Dana's Wheaton, § 345, citing, Vattel, Droit des Gens, liv. 3, ch. 8, §§145-147, 159 ; Kluber, Droit des Oena Moderne de VEwope, pt. II., tit. 3, sec. 3, ch. 1, §§ 345-347. According to some treaties and decrees, fishermen catching fish for food are also exempt. * They are liable to be taken prisoners of war, (see Articles 753 and 801,) and to visitation and search, (see Article 865.) Haileek, {Intern. Law & Laws of War, p. 437, § 8,) enumerates as exempt irom direct operations of war ; 1. Feeble, old men ; women and children, =and the sick ; 2. Ministers of religion ; men of science and letters ; pro- 434 OUTLINES OF AN fessionalmen ; artists, merchants, mechanics, agriculturists, laborers,— ia> fine, all non-combatants or persons who take no part in the war, and make no resistance to arms. This exemption continues OJ1I7 so long as- they refrain froln hostilities or inciting hostilities, pay military contribu- tions and submit to military authority. Passive enemies, sick and wounded, leaning armed^ place. 751. Passive enemies, and sick and wounded, may- always be sent out of an armed place ; and in taking- their departure, they, with, their attendants, must be- respected and protected by the belligerents. See Convention of Geneva, Art. VI., Tf 5. Disarming places. 752. The passive enemies in a particular place may be disarmed and restrained, when necessary for the- security or success of the belligerent force. SaMeck, Intern. Law & Laws of War, p. 438, § 5. Persons communicating with the enemy. 753. Persons who, within the miltary lines, make- any communication with the enemy, direct or indirect, intended to subserve the purpose of the war, may be- expelled from the lines, ' or may be treated as active- enemies. 1 Lieber, {Instructions, T 98,) says, that all unauthorized or secret com- munications with the enemy are treasonable. The same author, (§§ 90-91, (says of war traitors, (persons in a place- or district under martial law, who, unauthorized by the military com- mander, give information of any kind to the enemy or hold intercourae- with him,) that they are always severely punished. If their offense con- sist in betraying to the enemy anything concerning the condition, safety,, operations or plans of the troops holding or occupying the place or district, - their punishment is death. If the citizen or subject of a country or place invaded or conquered, give information to his own government, from which he is separated by the hostile army, or to the army of his government, he is a war traitor,, and death is the penalty of his offense. This rule seems too harsh. It' is sufficient to subject them to the treatment of active enemies, except: .where they come within the category of spies. The rules respecting spies, war traitors and war rebels, are applied^ without distinction of sex. Lieb&r's Instructions, If 102. INTEENATIONAL CODE. 495 CHAPTER LIX. THE mSTEUMENTS AND MODES OF HOSTILITIES. It has not been thought best, in framing these provisions, to attempt the statement of a theoretic distinction between those forms of force which are and those which are not unlawful, but only to enumerate those which it seems practically important to prohibit. Concealed modes of extensive destruction are allowable ; as, torpedqea planted to blow up ships, or strewed over the ground before an advancing enemy, and mines ; hot shell are permissible, and bombshells to set fire to ships, camps or forts ; and it is thought that steam or boiling water may lawfully be thrown upon boarders, by a ship on the defensive. The employment of assassins ; the introduction of infectious or con- tagious diseases, the poisoning of springs, the use of poisoned weapons or of chemical compounds, which may maim or torture the enemy, or of any material which owes its efficacy to a distinct quality of producing pain, or of causing or increasing the chances of death or disability, and which can not be remedied by the usual medical and surgical applications for forcible injuries, or averted by retreat or surrender, are unlawful. Dana's Wheaton, Mem. of Intern. Law, § 343, note 166. Article 754. Unlawful weapons. 755. Private gratification forbidden. 756. Unlawful hostilities. 757. Notice of bombardment. 758. Retaliation, when allowed. 759. Mode of retaliation not to be barbarona. 760. Passive or disabled enemies and prisoners. 761. Bribery and intrigue. 763. Good faith in keeping engagements. 763. " Stratagems " defined. 764. Unlawful stratagems. 765. Lawful stratagems. 766. Piratical use of false colors, &c. 767. "Spies" defined. 768. Employment and punishment of spies. 769. Guides. 770. Punishment of guides. 771. Solicitation of desertion unlawful. 772. Enlistment of deserters no protection from punishment 496 OUTLIlfES or AN Unlawful weapons. 754. The following are unlawful weapons : 1. Those which are poisoned ;" 2. Those which contain explosive material, whether in musket balls or in any other missile intended espe- cially for the person ;' 3. Those which contain chemical compounds in- tended to torture ; and, 4. All other weapons intended to cause needless suffering, or wounds unnecessarily difficult to heal/ ' EMber, Droit des Oens, § 344 ; Bkmtschli, Droit Intern. Oodifie, § 657. ' Tlie International Military Commission, in a session at St. Peters- burg, agreed to prohibit the use in time of war of all explosive projec- tiles weighing less than four hundred grammes. Army and Navy Jour- nal, New York, Nov. 38, 1868. ' Biore Nowoea/u, Droit Intern., v. 3, p. 379. Of this class are : Boulets d ehaines, which, according to BluntscMi,. (Droit Intern. Codifie, § 560,) are forbidden only on land. Boulets d bras. Boulets rames, mentioned by BluntsMi, § 560, note. Le petit plomb. MitraiUe, (de favre cha/rger le canon ame des moreeaux de fer ou de verre, ou avee des clou) (MitraiUe proprement dite.) According to Kliiber, mitraile in the ordinary acceptation of the term, and, even in case of necessity, of pieces of lead, not perfectly round, are allowable. But according to Bluntsehli, § 560, they are forbidden at sea. Verrepile. De faire cTia/rger le fusils d deux bcUles; ddeux morties de balks; ou fondues avee de moreeaux de verre ou de cJiaux. Boulets rouges ou de eouronnes foudroyantes ; cercles poisses. These are prohibited by treaty in some maritime wars. Kliiber, % 344, note a. Fleehes barbeUs. Bluntsehli, Droit Intern. ' Cod., § 558. Kliiber, (Droit des Gens, § 344,) says, that the customs of war condemn the use of chain shot and bar shot, shooting bits of iron, brass, nails, &o., the loading of muskets with two balls, with jagged balls, or with balls mixed with glass or lime. Special treaties have prohibited as between the parties the use of chain, bar, and hot shot, as well as of pitch rings, (cercles poissh.) Grape, canister and shrapnel shell, or spherical case shot are used in the United States navy. Ordnance Instructions of 1866, p. 76, §§ 371- 275. INTEliNATIONAL CODE. 497 Private gratification forbidden. 755. All transactions for individual gain at the ex- pense of the enemy,' all insults to the religion, honor, language or manners of the enemy ;" all assassination' or other acts of private revenge, or connivance at such acts, and all violence for private purposes,' are unlaw- ful. Lieber's Instructions for the Government of Armies of the United States, 111. 1 Such as extortion of money for private use. Lieber's Political Ethics bk. VII., § 34. ' Bluntschli, Droit Intern. CodiJiS, § 577 'Eluber, Droit des Gens, § 244; Bluntschli, Droit Intern. Codifie, § 561 ■ Lieber's Instructions, ^ 148 ; Dana's Wheaton, Mem. of Intern. Law, % S43, note 166. * Such as the gratification of lust. Lieber's Political Ethics, bk. VII. §24. Unlawful Tiostilities. 756. The following acts are unlawful," except when inflicted in retaliation, within the limits prescribed by article 758 : 1. Offering reward for the death of any person ;° 2. Proclaiming any person an outlaw ;" 3. Incendiarism, except of military structures ;* 4. Bombardment of defenseless places ;' 5. All wanton injuries to property, not subject to hostilities according to the provisions of this Book ; 6. All unnecessary or avoidable injury to the per- son of others than active enemies," or to property men- tioned in article 840, even when contained in fortified places besieged or bombarded ;' 7. Refusing quarter to those who surrender and lay down their arms,° or killing or wounding a de- fenseless" or unresisting" enemy ; except in the cases where the refusal of quarter is necessary by way of re- taliation, allowed by article 758, or when the punish- ment of death is ordered by a competent tribunal for an offense committed by such enemy. 498 OTTTLUNTES OF AW 8. Mutilation or other wanton injuries of the person of a prisoner : 9. Firing on outposts," sentinels or pickets, ex-, cept under express orders to drive them in : 10. The use of poison " or other means, to vitiate food, drink or atmosphere, or to spread contagious or infectious disease ; and, 11. Starving " the enemy by cutting off supplies of food or water. ' It is lawful, towever, to take advantage of the disorder or weakness caused by such acts, when committed by third parties. BhintscMi, Droit Intern. Codifie, § 563, note. ' Bluntschli, Droit Intern. Codifli, § 562 ; Lieier's Instructions for the Government of Armies of United States, Tf 148. Kluber, {Droit des Oens, § 344,) says, putting a price on the head of th» sovereign or general-in-cMef is forbidden. ' The law of war does not allow proclaiming either an individual be- longing to the hostile army, or a citizen, or a subject of the hostile gov- ernment, an outlaw, who may be slain without trial by any captor. Lie- ber's Instructions, Tf 148. * Bluntschli, Droit Intern. CodijU, § 563, note. ' This, it seems, should be prohibited, though it has been regarded a» allowable. ' Such are the violation of women, the despoiling of tombs, the pro- faning of places of worship, &c. Klliber, Droit des Gens, § 244. ■■ Lieber's Instructions, ^ 35. 8 By the present rules of international law, says Salleck (Int. Law c6 LOiDS of War, p. 439, § 6, citing many authorities,) quarter can be refused the enemy, only, in cases where those asking it have forfeited tiieir live* by some crime against the conqueror, under the laws and usages of war. But Lieber, (Instructions, TT 60,) says, that a commander is permitted to direct his troops to give no quarter, in great straits, when his own salva- tion makes it impossible for him to incumber himself with prisoners. Se« also Bluntschli, Droit Intern. CodifiS, § 580. According to the same authorities, troops known to give no quarter receive none ; (Bluntschli, % 581 ; Lieber, If 63 ;) and if the character of* prisoner, as a member of such troops, is unknown at the time of capture, he may be put to death, if it be discovered within three days after th» battle in which quarter was given under such misapprehension. Lieber, 166. This Article would establish » more humane rule. ' Bluntschli, Droit Intern. CodiflS, § 561, and note. '» Halleck, Intern. Lam and Laws of War, p. 436, § 2 ; p. 439, § 6 ; lAe- ber's Instructions, \ 71 ; Bluntschli, Droit Intern. Oodifie, § 385. INTERNATIOJfAL CODE. 499 Some earlier authorities allow the killing of prisoners who have been ■token and who can not be safely kept. Vattel allows this, only, where no promise to spare them has been given ; or where safety absolutely ■Remands it. But Halleek, (p. 440, § 20,) condemns such an act, in any ease, as infamous at the present day. " lAeber's Instructions, If 69. " SaUeck, Intern. Lorn and Laws of Wwr, p. 393; BluntaehM, Droit Intern. GodifiS, § 557. This applies equally to the poisoning, and to the diseases of animals. Kluber, Droit des Oeris, § 344. The use of poison in any way is forbidden. Lieber's Instructions, Tf1[ 16, 70 ; compare, how- ever, Lieb&r's Political EtMcs, Bk. VII., § 25. Some earlier authorities sanction the use of poison. See Wildman's Intern,. Lam, v. 2, p. 24. " By the existing rules this is allowed. Dana's Wheaton, % 343, note 166 ; and Lieber's Instructions, T 18, allow also driving back non-com- batants whom the commander of a besieged place expels. But these ex- treme measures, it should seem, ought not to be continued. Notice of bombardment. 757. Before bombarding any city or town, a com- mander must give notice to its authorities of Ms inten- tion to do so ; and must allow a reasonable time for the removal of all who are not active enemies. Lieher, {Instructions, Ti 19,) says that it is no infraction of the laws of war to omit such notice ; for surprise may be a military necessity. In the Franco-Prussian war, the Germans hesitated to resort to a general bombardment of Paris, and it is said, decided to reduce the city by famine instead of fire, if possible. Circular of Count Bismarck. Annual Register, for 1870, p. 187. The rule that the bombardment of a fortified town should be preceded by notice was asserted by the representatives of neutral powers in Paris, during the seige ; and they accordingly united in a note to Count Bismarck, requesting that "in accordance with the recognized princi- ples and usages of the law of nations, steps may be taken to permit their countrymen to place themselves and their property in safety." Foreign Relations of the United States, 1871, pp. 284, 295. This was re- fused by Count Bismarck, on the ground that ample warning and oppor- tunity to leave had been given. Id. pp. 293, 363. Retaliation., when allowed. 758. Upon satisfactory evidence that the rules of lawful warfare are violated by an enemy, and if there be no other means of restraining his excesses, retalia- tion may, after deliberation, be justly resorted to in order to compel him to observe the law. 500 OUTLINES OF AN" La/mrence's Wheaton, Elem. of Intern, Law, pp. 607, 608 ; Dana'» WJuaton,%Z^ri, citing Vaitel, Droit des Gens, liv. III., ch. 8, § 142; ch. 9, §§ 166-173 ; Marten's Pricis du Droit des Gens Moderne de I' Europe, liv. VIII., ch. 4, §§ 273--280 ; Eluber, Droit des Gens, Part II., tit. 2, sec. 2, ch. 1, §§ 262-265. BluntscUi, Droit Intern. OodifiS, % 567 ; Lieber, Instruc- tions, 1 38. In the war of the rebellion, the president of the United States issued an order, July 30, 1863, in view of alleged barbarities inflicted upon prisoners by the enemy, declaring that for every soldier of the United States killed in violation of the laws of war, a rebel soldier should be executed ; and for every one enslaved or sold into slavery by the enemy, a rebel soldier should be placed at hard labor on the public works, until the other should be released and treated as a prisoner of war. General Orders of U. 8. War Department, v. 3, p. 333, No. 253. Mode of retaliation not to be barbarous. 759. Retaliation for barbarous hostilities, such as mutilation, deprivation of food or drink, or enslave- ment of prisoners, the use of unlawful weapons, or other cruelties, can not be made by inflicting the same barbarities ; but may be by inflicting death. This principle is declared in Lieber's Instructions, ^f 58, in respect to enslavement. Passive or disabled enemies and prisoners. 760. The refusal of quarter, when authorized, does not justify killing passive enemies, or active enemies already disabled on the ground, or those who are al- ready prisoners. Lieber's Instructions, T[ 61 ; BhintscMi, Droit Inter. Codifii, § 583. Bribery and intrigue. 761. Bribing or attempting to bribe any enemy im- pressed with the military character of the hostile na- tion, or any of its officers, agents or servants ; and clandestinely corresponding with a faction in the enemy* s forces or people, are unlawful. Halleck says, the latter is not unlawful ; though the former is not honorable. Kl'uber, (Droit des Gens, § 344,) declares the corrupting of the generals and functionaries of the enemy to be unlawful, as well as engaging its subjects in treason or sedition. INTEENATIOWAL CODE. 501 Woolsaif, {International Law, § 137, p. 318,) says, that " to lead the officers, counsellors, or troops of an enemy to treachery by bribes, or to seduce her subjects to betray their country, are temptations to commit a plain crime, which no hostile relation will justify. Yet to accept of the services of a traitor is allowable : " citing Vattel, Droit des Gens, III., 10, §§ 180, 181. The laws of war impose the punishment of death on one who attempts to bribe an officer or induce a soldier to desert. Halleek, Intern. Law & Loam of War, p. 409, § 37 ; citing Phillimore, Int. Law, v. 3, § 106. Bluntschli, {Droit Intern. CodifiS, § 564, and note,) says, that the insti- gation of treason in the officers and soldiers of the enemy is not to be countenanced, but to instigate acts not dishonorable in themselves, such as political offenses in other cases, is allowable. It should seem proper, however, for the nations uniting in a Code to recognize the obligation to respect the rights of allegiance in regard to civilians as well as soldiers. Good faith in Iceeping engagements. 762. Lawful promises made to the enemy must be kept, in good faith. BluntseMi, Droit Intern. OodifiS, % 566 ; MorS, Hfovmeau Droit Intern., T. 2, p. 356. " Stratagems " d^ned. 763. Stratagems are snares laid for an enemy, or deceptions practiced on him. Unlawful stratagems. 764. The following are unlawful stratagems: 1. Any false communication, byword, sign or other- wise, addressed directly to the enemy ; ' 2. The use of false colors, "false uniforms,' and false signals ' of distress ; 3. Disguise, or using indicia of neutrality or inac- tivity, for the purpose of committing acts of hostility, with the appearance of a peaceful intent ;" and, 4. All other acts of perfidy ' and treachery. ' This is a more strict rule than is at present applied, but with the distinctions made in. the next Article, is not more strict than good faith •eems to require. The exigencies of lawful negotiations require that communications di/rectly to the enemy should be truthful. ' This is different from the rule heretofore existing. Bluntschli, {Droit 503 OUTLINES or AN Intern. CodiflS, § 565, and note,) says, It is not now unlawful to, deceive the enemy by using his own colors and uniform ; but before actual con- test the true character must be disclosed. Lieber, (Instructions, T[ 65,) says, the use of the enemy's emblems of nationality for the purpose of deceiving him in battle, is perfidious. False colors at sea are now allowed to be used in sailing, even in pur- suit, but the commission of any act of hostility under false colors is piracy. Halleck, {Intern. Law and Laws of Wa/r, p. 404,) says, that firing the aflBrming gun is not an act of hostility within this rule ; but cites Masse and Hautefeuille as of a contrary opinion. Ortolan, (Diplomatie de la Mer, v. 3, pp. 29, 30,) says, that it is not dis- honorable, at sea, to draw the enemy into combat, or escape a superior enemy, by raising a false flag, but it is forbidden to commence or con- tinue the combat under any other flag than the true one. Formerly it was forbidden to fire the warning gun under a false color, but now the French law only requires the French flag to be displayed before firing shot. See also on this subject, 3 Wildman's Intern. Law, 25 ; The Peacock, 4 Bobinson's Rep., 187 ; Pistoye et Bwoerdy Traite des Prises, tit. 5, ch. 1 ; MassS Droit Com., t. 1, § 307 ; Sautefeuille, Droit des Nations Neutres, t. 4, p. 8 ; Valin, TraitS des Prises, ch. 1, sec. 1, § 9 ; LebeoM, Nouveau Code d,es Prises, t. 6, pp. 338, 383 ; De Gussy Droit Maritime, liv. 1, tit. 3, §25. By the present Article, a capture accomplished by the use of false colors would be unlawful. The protection of neutrals seems to require that the false use of neutral colors should not be resorted to by belliger- ents ; and the enlarged immunity herein proposed for neutrals would make this restriction still more important. ' Lieber, {Instructions, Tf 64,) says, that if uniforms captured from the enemy are used, a striking mark or sign must be adopted for distinction. Troops who fight in the enemy's uniform without such mark could ex- pect no quarter. Bluntsehli, {Droit Intern. OodifiS, % 583,) seems to apply this rule only to the use of such uniforms in battle. * For an instance of the use of false signals in distress, see Vattel, Droit des Oens, liv. iii., c. 10, § 178. False signals not addressed to the enemy may perhaps be regarded as a part of lawful stratagem. ' The principle which it is desired to establish is, that since new im- munity from the evils of war is proposed for passive enemies and neu- trals, belligerents shall not perfidiously take advantage of this as a means of stratagem. The case cited by Ortolan, {Diplomatie de la Mer, v. 3, p. 31,) of the British vessel of war in 1800, whose ofiScers and men took pos- eession of a Swedish vessel, a neutral, and in her surprised two Spanish frigates at anchor, is, — so far as the offense against the Spanish forces is concerned,^-only an extreme case of pursuit under false colors. If neutrals and passive enemies are to be respected, it should seem proper to forbid osing any indicia of neutrality or inactivity as a cover for hostilities. Disguise for the purpose of getting within the enemy's lines without INTERNATIONAL CODE. 503 force, to put a person to death, is unlawful ; but disguise of ships or forces, for gaining a position or making a capture with force, is not. • It is the breach of good faith, express or implied, which constitutes perfidy. Salleek, Intern. Law and Law's of War, p. 403. Mori, (Nouveau Droit Intern., v. 3, p. 383,) concludes that stratagem is permissible only when it does not violate the principles of morality, pledged faith, and the general rules of war. Lawful stratagems. 765. The following are lawful stratagema : J. False representations, addressed to any other than the enemy, though intended to come to his knowledge ;' 2. Feigning assent to an infamous proposal, and making false communications in response thereto ; and, 3. Surprise, without disguise or treachery. ' Salleek, Intern. Za^M and Zawa of War, p. 405. Wildman, (Intern. Law, v. 3, p. 34), says, unqualifiedly, that disguising men and ships, except firing under false colors, as well as spreading false news, and the like, are lawful. No rule of war forbids a commander to circulate false information, and to use means for deceiving his enemy with regard to his movements. WooUen, Intern. Law, § 137. Piratical use of false colors, &c. 766. Acts of hostility committed by a ship under false colors, or by the use of a neutral ship, or accom- plished by the use of false colors, or of false signals, addressed to the enemy, are acts of piracy. See note to Article 764; and compare Article 61. "Spies" defined. 767. Spies are persons who, with disguise or other deception, go peaceably among the enemy to discover his condition. Liter's Inatrtictions, If 88. Ealleek, (Intern. Law and Laws of War, p. 406,) includes in his defini- tion the act of communicating information so acquired to the employer. But it is not necessary to show that done or even intended, in order to constitute a spy. Ad open reconnoissance is not forbidden. BltintscMi, Droit. Intern. Codifie, § 630. 33 504 OUTLINES OF AN Employment and punishment of spies. 768. It is lawful to employ spies without corrupt- ing public or military officers ; ' but a spy is punishable with death if captured while acting as such/ or in go- ing or returning. ' More, Noweeau Droit Intern., v. 2, p. 283. 2 The act of Congress of the United States, of March 3, 1863, § 38, pun- ishes with death all persons found in time of war lurking or acting as spies, in or about any of the fortifications, posts, quarters, or encamp- ments of any of the armies of the United States, or elsewhere. Lieber, {Instructions, If 83,) says, that a scout, — that is, a person who with disguise or other deception lurks within or about the lines of the enemy to obtain information, — is punishable with death. But it should seem that one who lurks without the lines ought not to be punished for that alone. A successful spy or war-traitor safely returned to his own army and afterwards captured as an enemy, is not subject to punishment for his acts as a spy or war-traitor, but he may be held in closer custody as a dangerous person. Guides. 769. A belligerent may compel any inhabitant to serve as guide or pilot ; and one who serves his own nation as guide, or who by compulsion serves the enemy as guide, is not punishable therefor. Lieber's Instructions, 1[Tf 93-95 ; Bluntschli, Droit Intern. Oodifie, §| 634, 635, If a citizen of a hostile and invaded district voluntarily serve as a guide to the enemy, or offer to do so, he is deemed a war-traitor, and may be punished with death. A citizen serving voluntarily as a guide against his own country commits treason, and may be dealt with according to the law of his country. Punishment of guides. 770. Guides or pilots who intentionally mislead, are punishable with death. Lieber's Instructions, T[ 97 ; Bluntselili, Droit International Oodifii, § 636. Solicitation of desertion unlawful. n\. It is unlawful to solicit desertion'from military INTERNATIONAL CODE. 505 duty ; but, except during a truce or armistice,' de- serters may be received and enlisted into service. More, Nowmeau Droit Intern., v. 3 p. 282. ' 2 Wildman's lnternat,ional Law, p. 27 ; citing Grotius, III., 21, viii. Pufendorf, VIII., 7, xi. Enlistment of deserters no protection from punish- ment. 772. A deserter VFho enlists with the enemy is not tJiereby protected from punishmftin according to the military law of the nation whc^e service he deserted, if he fall into its power again. Lieber's Instructions, ^ 48 ; Woolsey's Int&rnational Law. § 138, p. 330. CHAPTER LX. TRUCE AND ARMISTICE. Article 773. "Truce "and " armistice " defined. 774. Authority to make a trucet. 775. Authority to make armistice. 776. Publication of truce. 777. Interpretation. 778. Effect of armistice or truce. 779. Enforcing. 780. Expiration. 781. Unauthorized breach. 782. Recommencing hostilities. 783. Flags of truce. 784. Effect of capitulation. "^wce" and '■'■armistice^'' defined. 713. The term "truce," as used in this Code, means a suspension of hostilities as to a part of the forces on either side, or as to one or more places. The term "armistice" means a suspension of all hostilities between the belligerents. Ualleck, [Intern. Law and Laws of War, p. 654,) and Bluntschli, (Droit Intern. OodiflS, §§ 687, 689,) distinguish between a suspension of arms, aa being a temporary and local cessation of hostilities by a detachment of 506 OUTLINES OF AN troops, and a truce, as a suspension of hostilities for a considerable length, of time, and for a general purpose. Authority to make a trvAie. 774. A truce may be concluded between the com- manders of the belligerent forces respectively, extend- ing to their own commands, without special authority. Authority to make armistice. Tlh. An armistice can be concluded only by agree- ment of the governments of the respective nations. In the exercise of a general implied power incidental to their official stations, generals and admirals may suspend or limit the exercise of hos- tilities within the sphere of their respective military and naval com- mands, by means of special licenses to trade, of cartels for the exchange of prisoners, of truces for the suspension of arms, or capitulations for the surrender of a fortress, city, or province. These conventions do not, in general, require the ratification of the supreme power of the State, unless such ratification he expressly reserved in the act itself. Lcmrence't Wheaton, Elem. of Intern. Law, p. 443, § 3 ; Dana's WJieaton, § 354, cit- ing Martens, Precis,liv. II., ch. 8, §§ 49, 51, 65 ; Heffter, Droit Interna- tional, § 87 ; Qrotius, de Jure Belli ae Pads, lib. III., cap. 33, §§ 6-8 ; VatUl, Droit des Gens, liv. II., ch. 14, § 207. The conclusion of a general armistice, by the general or admiral com- manding in chief the military or naval forces of- the State, applicable to all hostilities in every place, and to endure for a long or indefinite period, requires either the previous special authority of the superior power of the State, or a subsequent ratification by such power. Lawrence's Wheaton, p. 685, § 19 ; Dane's Wheaton, § 401, citing 1 Kent's Comment- aries, 59 ; see Salleck, Intern. Law & Laws of War, p. 655 ; Mcecutive Documents, 31st Cong., No. 17, p. 601 ; Zliiber, Droit International, g§ 377, 278 ; Bluntsahli, Droit Intern. Codifli, §§ 688, 689. This amounts, in effect, to a temporary peace, except that it leaves undecided the con- »troversy out of which the war originated. Such acts or agreements, when made without authority, or exceeding the limits of the authority under which they purport to be made, are called sponsions. These must be confirmed by express or tacit ratifica- tion. Lawrence's Wheaton, p. 443, § 4 ; Dana's Wheaton, § 255. Publication of truce. 776. A truce or armistice binds the principals from the time of making the same, but no others until it has been published. Persons ignorantly violating it are not responsible civilly or criminally, but the principal INTEEKATIOlfAL CODE. 507 whose duty it was to publish it is bound to make com- pensation to the party injured. 3 WUdman's International Law, 38. To prevent the difficulties and damage that might arise from acts com- mitted in ignorance of a truce, it is usual to fix a prospective period for the cessation of hostilities, with reference to distance and the situa- tion of places. Lawrenee^s Wheaton, Blem. of Inttrn. Law, p. 686, § 21 ; Dana's Wheaton. § 403 ; 1 Kent's Commentanes, p. 160 ; citing Vattel, Droit des Oens, bk. 3, c. 15, §§ 239, 344. Interpretation. 777. Where the language of a truce or armistice is ambiguous, that construction is to be preferred which extends the benefits thereof. 2 WUdman's Intern. Law, 27 ; citing Qrotius, de Jure BelH ae Pacis, III., 21. 4 ; Vattel, Droit des Gens, III., § 244. Effect of truce or armistice. 778. Unless the terms of a truce or armistice indi- cate a different intention of the parties, the following rules apply : 1. It takes effect from the moment it is agreed on ; ' 3. JSTeither party, during its continuance, can do any act directly injurious to the other ;" 3. Neither party can take advantage of the cessa- tion of hostilities to gain a different position, or to threaten or strengthen a besieged place by works or military supplies, or to do any other act which could not safely be done in the midst of hostilities ; but all things are to remain as they were in the places con- tested, and of which the possession was disputed at the moment of concluding the truce or armistice ; and, 4. Subject to the foregoing restrictions, either party may continue general active preparations for war, by constructing or repairing fortifications, raising troops and gathering supplies. • Fiori Nowoeau, Droit Intern., v. 3, p. 356. ^ 1 Kenfs Commentaries, pp. 160, 161 ; Vattel, Droit des Gens, liv. Ill, ch. 16, §§ 245-251. Bluntschli, (Drmt Intern. Codifle, % 692,) says, that a 508 OUTLINES or AW belligerent may take possession of places which the enemy has aban- doned, but not those which he accidentally omits to occupy or guard. It is lawful during a truce, unless its terms forbid, to withdraw forces or collect reinforcements, but not to advance or occupy unguarded posi- tions, or receive deserters. 2 Wildman's Intern. Law, 27. It is obvious that the contracting parties may, by express compact, derogate in any respect from these general conditions. For a full treat- ment of this subject in detail, see Malleck, Intern. Law and Laws of Wa/r, pp. 657-660; Phillwnore's Intern. Law, III., §§ 117, 118, 197-8 ; 1 Kent's Commentaries, 16, 180 ; Heffter, Europ. Volker., §§ 14S-3 ; Martin's Prtcis du Droit des Oens, §§ 293-4 ; Wildman's Intern. Law, II., 27. See also Lieher's Instructions for the Govern, of Armies of United States, TfTf 135- 147 ; BluntschU, Droit Intern. OodiJiS, § 691. The computation of time is regulated by Article 994. Enforcing. 779. Any party to a truce or armistice may inter- fere to prevent any other party from doing any act in violation thereof. The hostilities it seems must be confined to what is necessary for such prevention, unless the acts are a breach of conditions which terminate the truce. Halleck, Intern. La/w and Laws of War, p. 658. Expiration. 780. A truce or armistice is terminated, either, X. By the expiration of the time limited by its terms ; or, 2. If no time be limited, then upon the expiration of due notice given to either party by the other to ter- minate it at a specified time ; or, 3. By a breach of its stipulations, expressed to be conditions thereof. ' Halleck, Intern. Law and Laws of War, p. 658. Wildman, (Intern. Law, V. 2, p. 37, citing Grotius, de Jure Belli ae Pacis, III., 21, XI.,) says, that the obligation of a truce ceases if violated by the other party, for the obligation is conditional. When a penalty is annexed to a violation an option is given, and if the penalty is demanded and paid the truce continues. 2 Wild/man's Intern. Law, 38. Unauthorised breach. 781. A truce or armistice is not terminated by acts IKTEKNATIONAL CODE. 509 not authorized by the commander, unless they are rati- fied by a refusal of satisfaction or otherwise. 2 WUdman's Intern. Lam, 28 ; Bluntschli, Droit Intern. Oodifie, §§ «90, 696. Jiecommencing hostilities. 782. At the expiration of a truce or armistice, hos- tilities may be commenced without any new declara- tion of war, or notice, unless otherwise agreed. Lawrence's WTieaton, Elem. of Intern. Law, p. 687, § 23 ; Dana's Wheaton, § 404, citing Liv. Hist., lib. IV., cap. 30 ; 1 Kent's Comment- ■aries, p. 161, citing Vattel, Droit des &ens, bk. 8, c. 16, § 260 ;■ BluntseUi, Droit Intern. Oodifie, §§ 694, 695. Flags of truce. 783. The bearer of a flag of truce is to be respected and protected by each belligerent, so far as possible, in coming and going, without suspending hostilities, but can not insist on being admitted ; and if admitted during an engagement, may be detained till the engage- ment is over. Ueber's Instructions, f^ 111-113. Effect of capitulation. 784. After signing the capitulation of a fortified place, the capitulator must not injure the works or property which he is to deliver up, unless the right to do so is reserved in the capitulation. Lieb&r's Instructions, Tf 144. 510 OUTLINES OF AN CHAPTER LXI. MEDICAL SERVICE. Articlb 785. " Ambulances " and " hospitals" defined. 786. Neutrality of ambulances and hospitals. 787. Persons attached to ambulances and hospitals. 788. Hospital supplies. 789. Exemption of private property and persons. 790. No distinction to be made in succor. 791. Immediate exchange of sick and wounded. 792. Prisoners incapacitated from future service. 793. Other sick and wounded. 794. Flag and badge. 795. Hospital ships to be of white exterior with greeo ports. 796. Effect of visitation of private ship used for sick and, wounded. 797. Belligerent's control of private ship used for sick and' wounded. 798. Voluntary societies for succor at sea. ^"^ Ambulances''^ and ^^ hospitals^'' defined. 785. The terms " ambnlances " and " hospitals " as- used- in this Code, include all establishments, places, ships and vehicles, permanent or temporary, which are- exclusively devoted to the reception, care or transpor- tation of the sick or wounded, or of supplies or attend- ants therefor. Neutrality of ambulances and Tiospitals. 786. Ambulances and hospitals are to be deemed neutral, and as such must be respected and protected by each belligerent, as long as they contain sick or wounded, and have only a sufficient guard to protect the inmates from disorderly violence. Convention of Geneva. Art. 1. INTEBNATIONAL CODE. 511 Persons attached to ambulances and hospitals. 787. The persons attached to the ambulances and hospitals, mentioned in the last article, for medical ser- vice, may continue their functions after the enemy has taken possession of the place or ship where they are, until they withdraw to join the forces to which they be- long. When they insist upon withdrawing, the com- manding officer must fix the time for their depart- ure, with the least delay of which military necessity admits. While they remain with the enemy they are entitled to receive from him the support and treatment appro- priate to their rank or service, according to the rate of either belligerent, whichever may be the lowest.' Convention of Geneva, Art. 3, and additional Articles 1 and 3. The neutrality assured to these persons is defined by Article 749. ' Etude mir la Cormention, par Gustave Moynier, p. 172. Hospital supplies. 788. The supplies of ambulances are not subjects of capture ; and the persons in the service thereof, on withdrawing after capture, as mentioned in article 787, may take away their private property. The Convention of Geneva, Art. 4, leaves the supplies of hospitals, as distinguished from the ambulance service, subject to capture. Exemption of private property and persons. 789. A house which receives and cares for sick or wounded must be respected and protected ; and the householder shall be in due proportion exempted from the billeting of troops, and from forced contributions. Convention of Geneva, Art. 5, and additional Article 4. No distinction to be made in succor. 790. The sick and wounded prisoners of war of both belligerents must be received and cared for with- out distinction of nationality. Convention of Geneva, Art 6, % 1. 512 OUTLINES OF AN Immediate exchange of sick and wounded. 791. Immediately after a baMe the chief command- ing oflBcers may, by mutual consent, each send his sick and wounded prisoners of war to the outposts of the other,' without further conditions of exchange." ' Convention of Geneva, Art. 6, If 3. '^ This seems to be implied. Prisoners incapacitated from future service. 792. Sick or wounded prisoners of war, who, after recovery, are found incapable of future military ser- vice, must be sent back to their own nation, as soon as practicable. Convention of Geneva, Art. 6, T 3. Other sicTi and wounded. 793. By consent of both, belligerents, sick or wounded prisoners of war taken by either, and not in- capable of future service, except officers above the rank of colonel,' may be sent back to their nation as soon as practicable, on condition of not taking up arms again during the war, unless dnly exchanged. Convention of Geneva, Art. 6, T 4, and additional Art. 5. The effect of the latter article, though in its form imperative, is merely permissive as above stated. See Etude sur la Convention, par Moynier, pp. 317-336. ' The rank should be made definite as here stated. Flag and hadge. 794. In order to secure the protection offered by this Chapter, a hospital flag, accompanied always by the national flag, must be displayed by the hospitals and ambulances, and a badge must be worn by the persons in the service. The hospital flag and badge display a red cross on a white ground. They can be used only by permission of the military authority. Convention of Geneva, Art. 7. A yellow flag has been used in the United States navy to designate a boat bearing medical officers. U. 8. Navy Ordnance, pt. 3, p. 36, § 83. INTERNATIONAL CODE. 513 A red flag has been used to indicate the handling of powder. Id pt 3 p. 52, §157 Hospital sMps to be of white exterior with green ports. 795. Hospital ships and boats must also be distin- guished by a white exterior with green ports. Convention of Geneva, additional Art. 12, Tf 3. Effect of visitation of private ship, used for sicTc and wounded. 796. The visitation of a private ship used for sick and wounded, notified upon its log, by a public armed ship of the enemy, renders it unlawful for the sick and wounded on board to take up arms again during the war, unless duly exchanged. And the visiting ship may put on board a sufficient force to secure the per formance of this obligation. Convention of Geneva, Art. 10, additional Art. 1. The two paragraphs which protect cargo on such vessels if not contraband, would be rendered superfluous by the Articles relating to private property. The last para^ graph of the article seems superfluous. See Etudes siir la Convention, par Moynier, p. 263. Belligerent s control of private ship used for sicTc and wounded. 797. A belligerent from whom protection or respect is claimed for a ship under the last article, may forbid its taking any direction, or maintaining any inter- course, which he may judge prejudicial to his opera- tions. Convention of Geneva, Art. 10, additional paragraph 8. Voluntary societies for succor at sea. 798. Any nation may give to a commission or so- ciety, organized under its law for the succor of sick and wounded in war, written authority to employ ships and the necessary attendants and supplies for the suc- cor of sick and wounded at sea, subject to the provi- 514 OUTLINES OF AN sions of this Chapter ; and they must be respected and protected accordingly. Substituted for the more special provisions of the Convention of Gen- eva, additional Article 13. CHAPTER LXIl. RELIGIOUS SERVICE. Akticlb 799. Chaplains, &c., to be respected and protected. Chaplains, <&c., to be respected and protected. 799. Chaplains, ministers of the gospel, and priests of every religion, engaged in ministering, as such, to the forces of a belligerent, or to prisoners, or to any persons suffering in war, must be respected and pro- tected by each belligerent, so long as they take no part in the hostilities.' The provisions of articles 787 and 788 apply to such persons and to the books and other articles used in their religious service. ' Perhaps a badge should be required to be worn by them. INTERNATIONAL CODE. 515 CHAPTER LXIII. PRISONERS. Akticle 800. The right to take prisoners. 801. What persons may be taken prisoners. 803. Persons not entitled to be treated as prisoners of ivai. 803. Messengers. 804. Personal property of prisoners of war. 805. Sums of money. 806. Surrender of side-arms. 807. Provision for maintenance of prisoners. 808. Restraint. 809. Rights of prisoner. 810. When prisoners of war may be punished. 811. Treason and other ofEenses committed in waging civil war. 812. Information. 813. Deceit by prisoner. 814. Compulsory labor. 815. Subject to retaliatory measures. 816. •• Parole " defined. 817. Parole. 818. Forbidding parole. 819. Extortion of parole by ill usage. 830. Paroles to be reduced to writing. 831. Obligation of a parole. 832. Violation of parole. 823. Escapes. 834. " Hostage " defined. 835. Treatment of hostages. 836. Death <^ hostage. 827. Cartels. 828. Right of belligerent to retain prisonera. 829. Manner of exchanging prisoners. 830. Ransom. 831. Cartel for exchange. S33. Breach of cartel. 833. Cartel ships. 834. Protection of cartel ships. 35 516 OUTLINES OF AN The right to take prisoners. 800. Any belligerent has a right to take prisoners. What persons may be taken prisoners. 801. The following persons may be taken prisoners, and no others : 1. Active enemies, as defined by article 746 ; 2. Those who are connected with the operations of the military forces, whether with or without the author- ity of the nation ; 3. The sovereign or chief executive oflEicer of the en- emy, or of his allies ; 4. Officers of the civil government of the enemy whose functions directly subserve a military pur- pose ; 5. Persons who are engaged in the country of the enemy, or within the military lines, in proclaiming opinions or disseminating information prejudicial to the success of the belligerent ; 6. Persons charged with offenses against the provi- sions of thisBook ; or with a violation of the military law of the captor, when amenable thereto ; ' and, 7. Persons of whatever character found on the field of battle. Fiori Nowoeau Droit Intern., v. 3, p. 296. BluntsMi, {Droit Intern. Codifie, § 594,) says, that all enemies may be taken prisoners ; tlie inhabitants of the country may be, exceptionally, if the safety of the belligerent army requires it. He enumerates as proper subjects of capture, journalists and others who advance hostile opinions, the sovereign and diplomats of the enemy, and of his allies. Ealleck, (Intern. Law and Laws of Wa/r.^p. 428, §4,) says, non-com- batants forfeit their exemption by inciting others to hostilities. Lieber's Instructions, (TfTT 49, 50,) include among persons liable to be treated as prisoners of war, " all men who belong to the rising en masse of the hos- tile country ; all those who are attached to the army for its efficiency, and promote directly the objects of the war ; . . citizens who accom- pany an army for whatever purpose, such as sutlers, editors or reporters of journals, and contractors ;'' . , . and also, if captured on belligerent ground, and if unprovided with a safe conduct from their captor's gov- ernment, " the monarch and members of the hostile reigning family, male and female ; the chief, and chief officers, of government ; and all INTEENATIONAL CODE. 517 persons who are of particular and singular use and benefit to the hostile aimy and Its government." The term " active enemies," used in the text, and defined by Article 746, will include all of these whose possession is important to the victor. Surgeons, nurses, and chaplains are' usually classed among non-com- batants, unless special reasons require an opposite treatment of them. WooUey's Intern. Law, § 138 ; Lieber's Instructions, T[ 53. If they are held by the commander, or at their own desire, they are to be treated as prisoners of war. ' This will include deserters. See Vattel, Droit des Gens, liv. 3, ch. 8, § 144 ; Ealleck, Intern. Law and Laws of War, p. 443, § 24. Fugitives from allegiance are not provided for, as it would hardly be expedient to suspend the right'of expatriation during war. Persons not entitled to be treated as prisoners of war. 802. All prisoners taken in war are to be deemed and treated as prisoners of war, except the follow- ing: 1. Those who, not being impressed with the military character, are unlawfully waging hostilities ; 2. Those who are unlawfully giving aid and comfort to the enemy ; 3. Spies ; 4. Pirates ; and, 5. Those who are charged with a violation of provi- sions of this Book, or of the military law of the captor. Messengers. 803. Messengers, employed by the enemy between different positions or parts of his own forces, are enti- tled, whenever captured, to be treated as prisoners of war, unless employing treachery or disguise. Bluntsehli, Droit Intern. Godifii, § 689. Lieber, {Instructions, Tflf 99, 100,) says, that "a messenger carrying written despatches or verbal messages from one portion of the army, or from a besieged place, to another portion of the same army, or its gov. ernment, if armed, and in the uniform of his army, and if captured while doing so, in the territory occupied by the enemy, if treated by tlie captor as a prisoner of war. If not in uniform, nor a soldier, the circum- stances connected with his capture must determine the disposition that shall be made of liim. A messenger or agent who attempts to steal til8 OUTLINES OF AN through the territory occupied by the enemy, to further, in any manner, the interests of the enemy, if captured, is not entitled to the privileges of the prisoner of war, and may be dealt with according to the circum- -stances of the case." This rule, however, seems too harsh. Personal property of prisoners of war. 804. Subject to the next two articles, money and other valuables on the person of a prisoner of war, or in his possession, as well as his clothing, remain his pri- vate property, and their appropriation by the captor is unlawful. XieJer's Imtruetions, IT 73. 8ums of money. 805. If the captured money of a prisoner of war be more than is necessary for his support, the excess may be appropriated by the captor, to be disposed of as the Tiational authority directs. Liter's Instructions, Tf 73. Surrender of side-arms. 806. Officers when taken prisoners must surrender their side-arms, unless the captor waives the surrender. Leave to retain side-arms does not allow the prisoner to wear them. Lieber's Instructions, Tf 73. Promsionfor maintenance of prisoners. 807. Prisoners of war must be sufficiently fed, clothed, sheltered and medically provided for by the captor, and treated in all respects with humanity.' The enemy may be required to make good the ex- pense," unless the detention be caused by the captor's refusal to exchange or ransom.' ' Lieber's Instructions, Tfl 76, 79. As to their treatment, see also Wookey's International Law, § 328. ' Vattel, Droit des Gens, liv. 3, oh. 8, § 154 ; EaUeek, Intern. Lam d .Laws of War, p. 484, §§ 14, 17. ' Halleck, Intern. Lam & Laws ojt War, p. 436, § 16. INTERNATIONAL CODE. 519 Restraint. 808. Prisoners of war may be subjected to the re- «traiiit necessary ' for their safe custody. The infliction cipon them of any suffering or indignity is unlawful. 2 WUdman's Intern. Law, p. 26. ' Prisoners of war may be confined or fettered, wlien necessary for their safe keeping. Halleck, Intern. Lcm & Laws of War, p. 430, § 7. Bights of prisoners. 809. A prisoner of war does not lose any of his rights, except that of liberty. His captivity only sus- pends the exercise of those rights with which it is in- •consistent. BluntscMi, Droit Intern. Codifli, § 738. When prisoners of war may ie punished. 810. A prisoner of war can not be punished for being a.n enemy, nor for lawful hostilities committed by him as such.' He may be punished for crimes ' committed against the captor or the captor's people, for which he has not been punished by his own nation. Liter's Inatruciiona, TfT 56, 59. ' Opinions of Sir John Dodson, Sir John Campbell and Sir B. M. Bolfe, in Oases & Opinions in Constitutional Law, hy Forsyth, p. 199. ' These crimes are not only such as are defined by this Code, but in- clude others. Treason and other offenses committed in waging 'Civil war. 811. The provisions of this Code as to prisoners of war do not prevent a nation from punishing its own members or domiciled residents, for any violation of its laws involved in their taking part in a civil war. Information. ' 812. Prisoners can not be required to give informa- tion concerning their own forces ; nor if required to do so, can they be punished for giving false information. 34 520 OUTLINES OF AN lAeher's Instructions, If 80. Perhaps an exception should be made in respect to services as guides. Deceit hy prisoner. 813. If a prisoner assume a false rank or condition' to affect his treatment in respect of confinement or ex- change, his release may be refused, and he may be punished on recapture after release obtained by such means. Lieber's Instructions, If 107. Compulsory labor. 814. Prisoners of war can not be required to work for the captor, except for their own support, ia case their own nation fails to provide adequately for them, and then only according to their rank and station ; ' and not in any service which directly subserves a mil- itary purpose.' • Lieber's Instructions, T 76. Halleck, {Intern. Law & Laws of War, p. 436, § 15,) says, they are not required to do so beyond the police duty of camp and garrison, and also where the enemy refuses to provide for them, and in extreme cases. ' This qualification is obviously proper. Subject to retaliatory measures. 815. All prisoners of war are liable to the infliction of retaliatory measures. Lieber's Instructions, f 59. See Article .758. " Parole ^^ defined. 816. A parole is a pledge of individual good faith and honor to do, or to omit doing, certain acts, after he who gives his parole shall have been dismissed wholly or partially from the power of the captor. Lieber's Instructions, If 120. Parole. 817. Engagements made by prisoners of war that ior a period not exceeding the duration of the war INTERNATIONAL CODE. 521 they will not escape, nor bear arms against the captor, are valid ; unless forbidden as provided in the next article, and the nation to which the service of such prisoners is due is bound to enforce such engage- ments. Other engagements by prisoners of war inconsistent with their allegiance, are void. Ealleek, Intern. Law & Laws of War, p. 434, § 13 ; Qerwral Orders of IT. 8. War Department, 1863, vol. 3, p. 53, No. 49, § 12. Paroles can only refer to the existing enemy and to his existing allies, and the existing war. Gen. Ord. of U. 8. War B&p., 1863, vol. 2, p. 51, No. 49, § 9. A military parol not to serve until exchanged must not be confounded with a parole of honor, to do or not to do a particular thing not inconsis- tent with the duty of a soldier ; such as a parole of honor not to attempt to escape, given by a prisoner in actual custody, in order to obtain exemp- tion from close guard or confinement. Such pledges, though binding, should be seldom given, for it is a prisoner's duty to escape if he can. Id., 1863, vol. 2, p. 237, No. 307, § 3. It is the duty of the captor to guard his prisoners, and if, through ne- cessity or choice, he fail to do so, it is the duty of the prisoner to return to the service of his government. He can not avoid this duty by giving an unauthorized parole. Id., 1863, vol. 3, p. 337, No. 207, § 3. An officer who gives a parole for himself or his command on the battle- field, is deemed by the common law and usages of war, to be a deserter. Id., 1863, vol. 3, p. 51, No. 49, § 4. Lieber, {Instructions, TfT 136-138,) says, that commissioned officers only are allowed to give their parole, and they can give it only with the permission of their superior, as long as a superior in rank is within reach ; that no non-commissioned officer or private can give his parole except through an officer. And individual paroles not given through au officer are not only void, but subject the individuals giving them to the punishment of death as deserters. The only admissible exception is where individuals, properly separated from their commands, have suffered long confinement without the possibility of being paroled through au officer. No paroling on the battle-field, no paroling of entire bodies of troops after a battle, and no dismissal of large numbers of prisoners, with a, general declaration that they are paroled, is permitted, or is of any Talu,e. Forbidding parole. 818. A nation which provides adequately for the 522 OUTLINES OF AN support of prisoners taken by the enemy, may forbid their accepting a release on parole. See Halleek, Intern. Law & Laws of Wm, p. 488, § 18, who says, a nation can not forbid a release on parole, unless at the same time it pro- vides means of support during imprisonment. Extortion of parole ly ill usage. 819. A pledge or parole extorted from a prisoner by ill usage is not binding. General Orders of U. 8. War J)ep., 1863, vol. 2, p. 237, No. 207, § 8. Paroles to be reduced to writing. 820. When a parole is given and received, there must be an exchange of two documents, in which the name and rank of the person paroled are accurately stated. And accurate lists of all paroled persons must be kept by the belligerents. Lieber'i Instructions,^^ 134, 125. Obligation of a parole. 821. An obligation by parole not to serve again during the war, forbids active service in the field or at sea, against the paroling belligerent or his allies, but does not forbid active service against other belligerents, nor interior service, such as recruiting or drilling re- cruits, fortifying places not besieged, or quelling civil commotions, nor civil, diplomatic, or other non-com- batant service. LMier's Instructions, ^ 130. Violation (f parole. 822. A prisoner who violates a lawful parole may be punished with death if recaptured. Martens, Droit des Oens, tome II. , § 275 ; Idler's Instricetions, f 124. The modern practice usually is to abstain from the infliction of death, except in an aggravated case, and to substitute close confinement with severities and privations not cruel in their nature or degree. INTERNATIONAL CODE. 523 Escapes. 823. A conspiracy among prisoners for a common escape is unlawful, and may be punished with death. An individual escape or attempt at escape by a pris- oner of war, without conspiracy or violation of parole, is lawful ; but a prisoner may lawfully be kUled if dis- covered in flight.' Lieber's Instructions, Tf 77. ' On being recaptured the escaped prisoner can not be punished for such escape. lb., Tf 78. "^ Hostage ^^ defined. 824. A hostage is a person accepted as a pledge for the fulfillment of an agreement between belliger- ents. Lieber's Instructions, Tf 54. Hostages are now rarely given. Treatment of hostages. 825. If the giver of a hostage fail to perform his ob- ligation, the hostage may be retained; but neither death, nor any personal injury beyond detention by such means only as are necessary for enforcing the pledge, can be inflicted on him. ' In other respects, hostages are entitled to the immu- nities of prisoners of war." ' 2 PhiUimore's International Law, p. 68. It has been said that a hostage is to be treated as a prisoner of war, but by this no more is meant than that he is not to be treated as a crim- inal. He is not subject to the peculiar liabilities nor has he the peculiar advantages of a prisoner of war. It is clear, says PMllimore, (vol. 2, p. 68,) that any proceeding of rigor against a hostage, even if he be forcibly seized in time of war, beyond what may be necessary for the security of his person, is illegal. Nor is he on the other hand entitled to ex- change like a prisoner. ' Bluntschli, Droit Intern. Godifie,% 600. Death of hostage. 826. If a hostage die, the giver is not bound, except in case of an express stipulation, to replace him. 2 PhiUimore's Intern. Law, p. 68. 524 OTJTLINES OF A^N Cartels. 827. It is the duty of belligerents to exchange pris- oners of war, or allow them to be ransomed on reason- able terms. Spies, war-traitors and war-rebels are not exchanged according to the common law of war. The exchange of such persons would require a special cartel, authorized by the government, or, at a great distance from it, by the chief commander of the army in the field. RigM of belligerent to retain prisoners. 828. A belligerent has the right to retain prisoners of war until the end of the war, if exchange can not be agreed on. Vattel, Droit des Oens, liv. 3, ch. 8, § 153 ; SalUek, Intern. Law and Laws of War, p. 431, § 9. Manner of exchanging prisoners. 829. Unless otherwise regulated by cartel or special agreement, exchanges of prisoners of war take place, number for number, rank for rank, wounded for wounded, with added condition for added condition, such, for instance, as not to serve for ascertain period. Lieber' a Instructions, If 105. Hansom. 830. Ransom for prisoners can be required only for those remaining upon one side after a general exchange has taken place,' and upon the authority of the nation by whose forces the capture was made. An oflBcer can not take ransom. Lieber's Instructions, If 74. More, {Nbuveau Droi,t Intern., vol. 2, p. 395,) condemns the alleged right to claim ransom. ' See Lieber's Instructions, Ij 108. Cartel for exchange. 831. A cartel, for the exchange of prisoners, may be agreed on by the nation, or by the commander in the field or fleet. See Lieber's Instructions, If 106. iNTBENiATIONAL CODE. 525 Breach of cartel. 832. A cartel may be terminated by either party, whenever violated by the other. Liter's Instructions, T 109. Cartel ships. 833. A cartel ship is one actually engaged by a bel- ligerent for service in the transportation of prisoners taken in war, agreeably to a cartel for exchange. A cartel ship should carry a pass from the nation employing it, and a flag of truce, with the flags of each belligerent displayed together. See Lushington's Nwoal Prise Law, §§ 276, 277. Protection of cartel ships. 834. Cartel ships, while actually and exclusively •engaged in service as such, and in going to and return- ing from such service, if they engage in no other traffic ■or intercourse whatever, whether otherwise lawful or unlawful, and are guarded only by a sufficient force to suppress disorderly violence, are free from capture, and are to be respected and protected by each bellig- rent. Kent, (1 Commentaries, p. 66,) says, that it is indispensable that a cartel for the exchange of prisoners be conducted with the most exact and ex- clusive attention to the original purpose, as being the condition upon which the intercourse by cartel ships can be tolerated. All trade, there- fore, by means of such ships, is unlawful, without the express consent of both the governments concerned. See LusMngton's Namal Prize Law, § 275, where the rule is stated as -excluding the carrying of cargo and engaging in unlawful intercourse. For the existing rules as to cartel ships, see WiUraan, Intern. Law, v. :2, p. 80. Compare Article 786. 626 OUTLINES OF AN CHAPTER LXIV- HOSTILITIES AGAINST PROPERTY. Akticle 835. What property may be seized. 836. What the belligerent may appropriate, and for what en4^ 887. Destroying means of communication. 838. Destroying facilities of navigation. 839. Ravaging or laying waste enemy's country. 840. Properly exempt from acts of hostilities. 841. Property exempt not to be sold or carried away. 843. Use of and title to public immovables. 843. Title to movables. 844. Revenues held in trust for governing the country. 845. Public ships surprised by war. 846. Private property to be respected. 847. Rescue. 848. Effect of recapture of property of a neutral. 849. Effect of recapture of property of a belligerent. 850. Military burdens of passive enemies. 851. Compensation for property taken for military uses. The most important change of existing rules which is proposed by the- provisions of this Chapter, is the exemption of private property from capture, at sea as well as on land, except in the cases of its being contra- band, or employed in illegal traffic, or actually used to promote the pur- poses of the war ; and except, also, in cases of military necessity, when compensation is made. The rule that private property on land ought to be respected as far as possible may now be regarded as fully recognized ; Bluntschli, Droit Intern. Codifii, g 651 ; Lieber's Instructions, 1[ 38 ; subject, however, t<> the ill-defined exceptions of military necessity. See notes to Article 846. It may be conceded that the earlier authorities sustained the right of taking booty on land ; and that the modern rule had its origin as asserted by Hautefeuille, (Droits et Devoirs des Nations Neutres, tit. III., section III., § 1,) in the impolicy of exasperating the inhabitants of a territory- INTERNATIONAL CODE. 527 by depriving them of their goods ; but whatever its original reason, it is sufficiently settled as a rnle of civilized warfare to need no further dis- cussion here. The question now is whether the same rule ought not to be extended to property at sea. The apothegm of Sir John Nicholl, (8 Term Rep., 548,) that " ther& could be no such thing as a war for arms and a peace for commerce ;" and that of Sir Travers Twiss, {Law of Nations, pt. XL, p. 52,) that "be- cause private war is inconsistent with public peace, it follows that pub- lic war is equally inconsistent with private peace," are little more than a play upon words, or at best, maxims which belong to the times when every individual of one belligerent nation was deemed an enemy of every individual of the other ; when Vattel could inquire whether women and children are numbered among enemies, and answer in the affirmative ; and when even Kent could declare, that all meeting of citizens of ad- verse belligerents, except in deadly combat, was unlawful. The rule now generally acknowledged by civilized nations is that the belligerent nations, not their non-combatant members, are enemies, (see Articles 705 and 744 ; ) and the history of recent great wars has demon- strated that there may be such a thing as a peace for commerce during a war of arms. Private war having become illegal, private peace should be secured so far as possible. There is no reason why public war should disturb private peace, merely for the sake of booty. The chief arguments on this question, which still deserve considera^ tion, are perhaps more completely indicated by Ortolan, (Diplomatie de la Mer, liv. III., ch. 2,) than by any other author. After alluding to the reasons of humanity, and of commercial interest, on which the protection of private property at sea has been urged, and raising the inadequate objection that some other severities of war are- still more objectionable in these respects, and replying to the argument that the rule of justice must be uniform, by saying that the land and the sea are so different that the one can not afford a rule for the other, he defends the right of capture at sea, upon the following grounds ; 1. The object of war is to compel a peace by injuring the enemy ; and on land the military power may impose requisitions and levies on the inhabitants ; which, in fact, are only convenient modes of seizing private property, and can not be substituted at sea for individual capture : 3. If war at sea were to be restricted to 'the naval forces, it would be impossible to injure the enemy there, he keeping his ships of war in port ; and meanwhile he might carry on intercourse by private ships with impunity ; 3. The capture of a ship and cargo is not like the confiscation of a warehouse of goods ; for the ship and seamen are potentially an auxiliary of the naval forces of the nation, and constitute means of ex- tending its power beyond its proper territory ; 4. The doctrine of the freedom of the seas favors the right of capture ; for, since a belligerent can not take possession of the sea and hold it as a territory, he can only take the ships he finds there ; and as by occupy- 528 OTJTr.INES OF AH" ing territory he may interfere with the territorial power of hia enemy, so at sea by capturing ships he may interpose against his enemy's right of passage on the seas ; 5. Tlie land rule does not leave non-combatants free to carry on an unrestricted commerce on the territory within military occupation ; but it forbids trade, it makes personal property inviolable only for a suffi- cient time to allow its sale or removal, and the continued protection of the title to real property is a principle inapplicable to ships which are personal property ; 6. Without capture of private property, war at sea would be imper- fect and, in so far, interminable. And, finally, he concludes that it is a question of conflict between na- tional and private rights ; and that private rights being the less import- ant interest, must yield so far as incompatible with the greater in- terest. The solution which he suggests is the maintenance of the right of capture, both of ship and cargro; together with the partial protection of ■private right, by a restoration of the value of the goods, in specified cases, to be made either immediately, or at the termination of the war. The one exception which he recognizes is that of the vessels, &c., of coast fisheries, when they serve chiefly as the means of subsistence of inofllensive inhabitants, and have no public and general importance. Dana, (in a note to Wheaton) earnestly advocates the practice of warring on commerce, declaring that in his opinion it is the most hu- mane, and often the most efficient part of war, and the least objectiona- ble part. " It takes no lives, sheds no blood, imperils no households : has its field on the ocean, which is a common highway, and deals only with the persons and property voluntarily embarked in the chances of war, for the purposes of gain, and with the protection of insurance. War is not a game of strength between armies or fleets, nor a competi- tion to kill the most men and sink the most vessels ; but a grand valiant appeal to force, to secure an object deemed essential, when every other appeal has failed." Dana's Wheaton, Elements of Intern. Law, p. 876. In reply to the observations that capture at sea corresponds with the right of requisition on land, and that the enemy may unexpectedly turn private ships and seamen into naval forces, it may be said that the right of requisition is restricted, and requires compensation ; see Article 851,) and that the capacity of a ship to serve in the war could at most be a ground for its detention, not for confiscation either of the ship or its contents. The freedom of the seas, and the possibility of a belligerent avoiding maritime war by ceasing to send out ships of war, and the suggestion that maritime warfare will become inconclusive without the right of private capture, may well be urged as arguments in favor of the reform against which they are cited. The sea is the highway of nations, and may well be dedicated by common consent, to peaceful uses. The pecu- liar suflerings and abuses incidental to hostilities at sea, and the fact INTEENATIONAi CODE. 539 that the result of a conflict there is so far dependent on fortuitous cir- cumstances, such as the number and strength of vessels meeting, the condition of the weather, &c., — as to have in modern times but slight connection with the ultimate fortunes of the war, should incline us to the conclusion, that this concession to peace would not involve a sacrifice of essential belligerent rights. The objection that commerce on land is interrupted by war, is entitled to the weight of analogy under existing rules ; but if the succeeding Ar- ticles should be received with favor, commerce on land, (in goods not contraband,) will be interrupted only between places in the actual mili- tary possession of the belligerents, or when it directly subserves the pur- poses of the war. This salutary modification has already been made in several wars, which are noticed below. So far as the consistency of a theory is entitled to weight on such a question as this, it seems suflBcient to say with More, {Nowoeau Droit In- Urnational, v. 2, pt. II., pp. 322, 324,) and Pradier-Fodere, (note to Vattel, Droit des Oens, Ed. of 1863, liv. 3, ch. 5, § 73, 1,) that war is now a rela- tion between nation and nation, and that therefore private property, at sea as well as on land, should be respected as far as possible. The right to injure the enemy is a right to injure the State, and not its non-com- batant members. On land, some injury of private property is necessarily incident to the pursuit of the enemy ; and, so far, such injury is allowa- ble ; at sea, the capture of private ships is not incidental to the right to pursue the enemy, and there should not be allowable. For a satisfactory solution of the question we must, however, look be- yond theoretic considerations to the interests which are practically in- volved ; and in this respect the question is this : Can private property be spared, without seriously impairing the efficiency of military measures, as a last resort for the settlement of disputes between natioAs bound so closely, in pacific relations, as those which may unite in this Code ? And here it is to be observed, that the interests of peace which are af- fected are much broader and more sensitive than those of war. The ad- vantage of the existing rule is the pressure it puts upon the enemy to submit ; the disadvantage includes, besides the actual loss of property, and derangement of commerce during war, the immense losses sustained on account of the apprehensions of war during time of peace. The mea- sure of the advantage, on the one hand, is not the actual loss inflicted during the war, but only the pressure indirectly brought to bear on the hostile government through the sufEerings of its citizens by those losses , while the measure of the disadvantage exceeds the actual losses, and in- cludes those derangements of commerce which are so quickly felt when an apprehension of war arises, and from which recovery is so slow after peace has been established. In view of these considerations it is submitted that the complete pro- tection of private property, with proper qualifications in respect to con- traband, prohibited intercourse, &c., is demanded by the interests of na- 630 OUTLINES OF AN tions and individuals, and that it is not incompatible with the mainte- nance of efBcient and adequate military power as a final arbiter in inter- national controversies. This principle was recognized and adopted in the treaty between the United States and Prussia, (1785,) and has always been advocated by the government of the United States ; and was approved for general adop- tion by Prussia, in 1834, (Eaielienovsky's Prize Lam, by Pratt, p. 164,) and is said to have been established by treaties between the Southern Amer- ican Republics, in 1851 and 1856. Id., p. 164, note (z). In the war of Eng- land and Prance with China, the right of maritime capture was totally suspended. Id., p. 167 ; and see note to Article 846 of this Code. In the Franco-Prussian war, (July, 1870,) the North German govern- ment declared private property on the high seas to be exempt from seiz- ure by them, without regard to reciprocity. The French government refused to relinquish the right of capture. In consequence of the capture of German merchant ships by France, the North German government revoked the exemption they had declared, giving, however, four weeks' notice of the new measure. See Foreign Belations of the United States^ 1870, p. 217; Id., 1871, p. 403. At the commencement of the war between Austria and Italy, in 1866, the belligerents agreed that merchant vessels on both sides should be free from capture ; " and the results of this agreement," says iMshington, {Naval Prize Law, Intro., p. viii., note,) " coupled 'with the rule (pre- scribed by the treaty of Paris,) ' free ships make free goods,' was that the private property of the enemy at sea was as completely exempt from hostile capture as private property on land." By a decree of March 39, 1865, the Emperor of the French made res- toration to the parties in interest, of all Mexican private ships taken daring the war between France and Mexico, and which had at that date been condemned by order of a prize court, and also of the proceeds of those which had been sold but not finally adjudicated upon. 9 De Clereq, 238. Somewhat similar modifications of the" general rule were made in 1859, in the war between Italy, France, and Austria. 6 De Clereq, 665. European governments have frequently, at the termination of a war, restored to one another the ships taken from their subjects, or have es- tablished mixed commissions for the purpose of ascertaining the dam- ages incurred by the merchants, and the amount of compensation they were entitled to. As an example, may be cited the convention betweea France and Spain, in the year 1823. Martens, N. R., VI. 386. England a]so, at the conclusion of the war with Holland, (1833,) restored to her all the Dutch vessels that had been taken. Martens, N. R., XIII., 97,98. As to the other exceptions, see Martens, N. R., XVI., 3, 611 ; and W%rm Zeitsehrift fwr der gesamumte Staatsmssenschaft, (1851,) 333, 828.* * During the war between Brazil and Paraguay, (1870,) certain non- comba|ant Paraguayans (women) deposited their val uables at the United States Legation in Asuncion. The Paraguayan forces subsequently occu- INTKRNATIOITAL CODE. 531 Thns far has been had in view the private property of members of the hostile nations. In respect to the property of neutrals, the principles ■of the Treaty of Paris of 1856 are embodied in the provisions of this Code.* In the fourteenth century, the rule was to confiscate enemy's but not neutral property, and where neutral goods were found on an enemy's ship, or a neutral ship was taken bearing enemy's goods, the neutral ^oods or ship were restored, and only the enemy's ship or goods were confiscated. Twias, Law of Nations, part II., p. 147, § 77. In the sixteenth century, the doctrine of hostile taint was adopted by France and Spain, and the neutral ship carrying enemy's goods, and neutral goods borne by an enemy's ship, were by them declared tainted with belligerency, and liable to confiscation. In the latter part of the eighteenth century, this doctrine was aban- doned by France, and that which exempts neutral ships and goods, and «ven enemy's goods (except contraband), when found on neutral ships, was, with some qualifications and fluctuation, adopted. The rule established by the governments maintaining the armed neutrality of 1780, permitted the seizure of neutral ships only where the •duties of neutrality had been unquestionably violated. And in the same year the French government forbade the molestation of neutrals, even though apparently destined to enemy's ports, and directed that in no case should neutral vessels be captured, unless they had cargoes contraband of war, or were engaged in the transport of English troops, or harbored Englishmen under a neutral flag. Katchenovsky's Prize Law, by Pratt, p. 63, and note (p.) In the seventeenth century, Holland made several treaties, among' pied the town as a stronghold, and expelled the inhabitants, including the American represefitative. The Paraguayans afterwards abandoned it, and the Brazilian forces entered and took possession ; and the property contained in the building which had been occupied by the American Lega- tion, fell into their hands. The government of the United States de- manded of the Brazilian government the restoration of the property of the American representative and of the American citizens ; and sug- :gested also that the property of the Paraguayan women should be treated by analogy to enemy's property found on a neutral vessel, and also re- stored. And the Brazilian government, without expressing any opinion on this analogy, directed all the property which fell into their hands in the Legation, without distinction of ownership, to be restored to the rep- resentative of the United States. Foreign Relations of the United States, 1871, pp. 49, 50. * Those rules are that, "A neutral flag covers enemy's goods, vrith the exception of contra- band of war." "Neutral goods, with the exception of contraband of war, are not liable to capture under an enemy's flag." They are not stated in this form, because other exceptions than con- traband need to be expressly recognized ; and the Article protecting pri- vate property of members of the hostile nation supersedes the necessity -of a distinct provision as to neutral property. 36 532 OUTLINES OF An- them one with France, recognizing more or less fully the doctrine that the national character of the ship should determine the fate of the goods. ^ These are the principal conflicting rules recognized on this point down to 1856, when the Treaty of Paris adopted the liberal rule that a free ship makes free goods, but an enemy's ship does not forfeit neutral g:ooda. Tliis rule has now been so generally adopted, that it needs no further discussion here. * * The original parties to the Declaration of Paris of 1856, were Great Britain, Austria, France, Prussia, Russia, Sardinia, and Turkey. The following powers have since given their adhesion to all the Articles. (Jm»s, Law of Nations, Part II., p. 167, note 55.) Baden, Mecklenburg-Strelitz, Bavaria, Mecklenburg-Schwerin, Belgium, Nassau, Bremen, Oldenburg, Brazil, Parma, Duchy of Brunswick, Holland, Chili, Peru, The Argentine Confederation, Portugal, The Germanic Confederation, Saxony, Denmark Sase-Altenburg, The Two Sicilies, Saxe-Coburg-Qotha, The Republic of the Equator, Saxe-Meiuingen, The Roman States, Switzerland, Greece, Tuscany, Guatemala, Wurtemburg, Hayti, Anhalt-Dessau, Hamburg, Modena, Hanover, New Granada, The Two Hesses, Uruguay. Lubeck, In the war of France and Great Britain against China, the principles of the Declaration of Paris, of 1856, were in substance adopted by both France and Great Britain, as a rule of action towards all nations, even those who had never acceded to that declaration. 8 De Glereq, 35. That free ships make free goods ; that is to say, that the goods belong- ing to subjects or citizens of a power or state at war, are free from capture or confiscation when found on board neutral vessels, with the exception of articles contraband of war, is recognized by the treaty between the United States and ° XpulTuc, ] ^^^- S' ^S^'''' ^''*- '^■' 15 ^- ^- '®*''*- '^^ ^- (^''•') 1^^- Bolivia, ' May 13, 1858, " XVI., 13 /(?., 1003. Venezuela, Aug. 27. 1860, " XIV., 13 Id., 1148. That the property of neutrals on board of an enemy's vessel is not subject to confiscation, unless the same be contraband of war, is recog- nized by the treaty between the United States aild ^Tep^uMo, [ ^^'''- ^' ^^^'^' '*'^*- ^"^- 15 ^- ^- ^^'^*- a'tL.,{Tr.;) 167. Bolivia, ' May 13, 1858, " XVI., 13 Id., 1003. In many of their treaties the United States of America have inserted the.,following clause : INTERNATIONAL CODE. 533 What property may he seized. 835. Subject to the provisions of this Book, a bellig- erent, for the purpose of compelling the submission of the hostile nation, may seize and hold : ' 1. The territory of the hostUe nation ; " 2. Its public armed ships, except in the cases pro- vided for by article 845 ; " 3. Other ships, public or private, bearing its national character, in the cases expressly provided for in this, Book,* and no others ; 4. Other public property of the hostile nation, ex- cept such as may be within the territory of the bellig- erent by its own wrongful act,' and except such as is exempted from the jurisdiction of either nation by the provisions of Title III. of this Code, entitled Intee- couKSE OF Nations,' and of Chapter LXI., entitled Medical Service ; and of Chapter LXIL, concerning Eeligious Service ; 5. All contraband of war, and all ships and goods involved in contraband traffic, in the cases and to the extent defined by Chapter LXV., entitled Contraband OP War ; and, " Stipulations, declaring that the flag shall cover the property, shall be understood as applying to those powers only who recognize this prin- ciple ; but if either of the two contracting parties shall be at war with a third, and the other neutral, the flag of the neutral shall cover the prop- erty of enemies whose governments acknowledge this principle, and not of others." Katchenonsky' s Prize Law, by Pratt, p. 117, note (f.) By the treaty between France and Peru, March 9, 1861, Art. XX., § 3, (8 De Clercq, 200,) property of members of either nation which remains neutral when the other is at war, are free from confiscation and detention even when on board an enemy's ship, unless contraband, or belonging to persons actually in the enemy's service, or destined to enter it. For discussions of belligerent rights, the capture of private property at sea, &c., see Transactions of the National Association for Promotion of Social Science, 1860, pp. 163, 279 ; Id., 1861, pp. 126, 748, 794 ; Id., 1863, pp. 89, 896, 899 ; Id., 1863, pp. 851, 878, 884; Id., 1864, pp. 596, 656 ; Id., 1868, pp. 167, 187 ; Vincens, Exposition raisonnSe de la Legislation Oom- vierdale, (Paris, 1821,) liv. XII., ch. 17, 18 ; Masse, Le Droit Gomm&rcinle, (Paris, 1844,) I., pp. 153-4, 162-3 ; Kalteriborn, DieKaperie im Seekriege, s. 193-203,216-338; HautefeuiUe, Droits et Devoirs. I., 340-44; Martens, Essai iur les Armateurs, s. 45, who considers maritime capture contrary to the spirit of the present European private law. Seffter, ( Volkerrecht, s. 130, 132, 139, 140, 175, 192,) takes an extended view of the subject, and seems to prove that by international law, war, at the present time, gives only actual possession, but not the legal property. 534 OIJTLIWES OF AN 6. All personal property engaged in hostilities, or in intercourse wMcli under tlie provisions of this Book is illegal.' ' Article 971 forbids the commission of any hostilities in the territory •of a neutral nation. * This includes the exercise of sovereignty over it. Twiss, Law of Jfations, pt. II., 133, § 64. To compel submission, a belligerent may take possession to an extent far beyond what would be a just indemnification, with the design of re- storing the surplus by a treaty of peace. Id., pt. II., 133, § 64. The ques- tion of title by capture is a distinct one ; see Articles 843, 843, and 896. * These are cases of ships within the territorial waters at the breaking out of the war, &o. * These cases are resisting visitation and search. Article 871 ; hospital ehips. Articles 796 and 797 ; and contraband. Article 854. ^ Wildman's Intern. Law, vol. 8, p. 11, citing "Answer to Pruss. Mem.," 1 OoU. Jw., 157. ' By the provisions here referred to, contained in Articles 139, 143, 183, and 184, the dwellings, archives, &c., of diplomatic and consular officers are exempt from the jurisdiction of the nation in which they are situated, with this qualification, that, by Article 109 the exemptions may be with- drawn in the case of an emergency affecting the existence of the nation. The exemption should continue through all ordinary vicissitudes of war. The right to send these officers and their movables out of the country in ndeumation of contraband and of public property taken at sea not on armed ships. A seizure of property for the purpose of applying it to military uses, during the occupation, such as buildings, &c., taken posession of by the military forces, to employ the same for the accommodation of troops, is not necessarily a capture. Case of the Memphis Navy Yard Property, 13 ■Opinions of U. 8. Attomeys-Oeneral, 135. - WooUey's International Law, § 19, p. 34. In the exercise of the right of redress, it may be necessary to strip a wrongdoer of a portion of his territory ; or in the exercise of the right of self -protection, and possibly •of punishment, it may be lawful to deprive him of the means of doing evil. Id., § 31, p. 37. ' Twiss, Lam of Nations, pt. II., 130, §§ 63, 63 ; Vattel, Droit des Gem, III., c. 9, § 160. In the case of Miller ®. The United States, 11 Wallace's U. 8. 8upr. Gt. Rep., 868, it was held, that the power of a government to confiscate prop- erty exists as fully in case of a civil war as it does when the war is foreign. Rebels in arms against the lawful government, or persons in- habiting the territory exclusively within the control of the rebel belli- gerents, may be treated as public enemies. So may adherents or aiders and abettors of such belligerents, though not resident within the enemy's territory. Moneys expended for the support of prisoners of war are to be reim- bursed in concluding a peace. Malleck, Int. Law a/nd La/ws of War, p. 487, § 17. Destroying means of communiGotion. 837. A belligerent, when necessary to prevent the passage of the enemy, or of contraband property, or the carrying on of illegal intercourse, may destroy or im- pair railways, bridges and other highways of either bel- ligerent, doing as little permanent injury as possible. Destroying facilities of navigation. 838. A belligerent, for the purpose of self-preserva.- 35 536 OUTLINES or AN tion, may destroy or impair lights, signals, channels and other facilities of navigation, within the territory of either belligerent, doing no more permanent injury than is necessary, and giving reasonable notice before so doing, for the benefit of neutrals ;' but the use of false lights and signals is unlawful. ' In the Franco-Prussian war, 1870-71, the German government gave such notice. In the case of the obstructing of Southern harbors during the Ameri- can civil war, the obligation of the government to remove the obstruc- tions when the war should be successfully terminated, was acknowl- Havaging or laying waste enemy'' s country. 839. For the purpose of self-preservation, a bellig- erent may ravage or lay waste the territory of the hos- tile nation. See Lctwrenee'a Wheaton, Elem. of Intern. Law, p. 598, § 6 ; Dana'i Wheaton, § 347 ; Twiss, Law of Nations, pt. II., p. 134, and authorities cited ; which sustain the rule that it is allowable in extreme cases, when necessary to accomplish the object of the war. The better opinion of the present day, liowever, condemns it except when necessary for self-preser- vation. Property exempt from acts of hostilities. 840. The following, so long as not used for a mili- tary purpose, are not objects of hostilities, and must be respected and protected by each belligerent, to whomsoever belonging : 1. Light-houses; storm signals; inter-oceanic canals ; submarine telegraph cables ; and all structures and establishments intended exclusively for the uses of peaceful intercourse ; except in the cases provided for by article 838 ; 2. Palaces and offices of government ; halls of legis- lation and of justice ; churches and temples of religion ; hospitals ; and other establishments of an exclusively religious or charitable character ; and, 3. Museums;, galleries of art; monuments and works of art ; libraries, books and manuscripts ; ob- INTERNATIONAL CODE. 537 servatories ; and scientific instrnments ; depositories of state papers, and public archives, of historical rec- ords, of scientific instruments, of muniments of prop- erty, of judicial and legal documents, and their con- tents ; and all other institutions of civil education and culture. Hallecle, Intern. Law provide that the liberty of navigation and commerce sliall extend to all kinds of merchandise, excepting those only which are distinguished by the name of contraband of war, and under this name shall be compre- hended : 1. 'Cannons, mortars, howitzers, swivels, blunderbusses, mus- kets, fusees, rifles, carbines, pistols, pikes, swords, sabres, lances, spears, halberds, grenades, bombs, powder, matches, balls, and everything be- longing, to the use of arms ; 3. Bucklers, helmets, breast- plates, coats of mail, accoutrements, and clothes made up in military form and for mili- tary use ; 3. Cavalry belts and horses, with their harness ; 4. And gen- 36 552 OUTLINES OF. AN erally, all offensive or defensive arms, made of iron, steel, brass, copper^ or of any other material prepared and formed to make war by land or at sea. The treaty between the United States and the Two Sicilies, Art. III., , Dec. 1, 1855, 11 U. S. Stat, at L., 639, enumerates as contraband : can- nons, mortars, petards, grenades, muskets, balls, bombs, gun-carriages, gunpowder, saltpetre, matches, troops, whether infantry or cavalry, to- gether with all that appertains to them ; as also every other munition of war, and generally every species of arms, and instruments in iron, steel, brass, copper, or any other material whatever, manufactured, prepared, and made expressly for purposes of war, whether by land or sea. The tieaty between the United States and Venezuela, Art. XIII., Aug. 37, 1860, 13 U. S. Stat, at L., 1143, enumerates aa contraband the follow- ing: gunpowder, saltpetre, petards, matches, balls, bombs, grenades/ car- casses, pikes, halberds, swords, belts, pistols, holsters, cavalry saddles and furniture, cannons, mortars, their carriages and beds, and generally aJl kinds of arms, ammunition of war, and instruments fit for the use of troops. By the treaty between the United States and the ^^^^^^f" Urt. XIV., Feb. 8, 1867, 15 CT. S. ^at o< £., (JV.,) 16T. Bolivia, " XVIII., May 18, 1858, 13 i««. 1003. all merchandise and things not comprehended in the articles of contra- band explicitly enumerated and classified in the treaty, shall be held and considered as free, and subjects of free and lawful commerce, so that they may be carried and transported in the freest manner by the mem- bers of both nations, even to places belonging to an enemy, excepting only those places which are at the time besieged or blockaded. See also Katchenovaky'a Prize Law, by Pratt, p. 118. It will be observed that saltpetre, matches, and horset mentioned in the foregoing treaties are not included in the definition given in the above Article. The rule there proposed is intended to protect belligerents' rights, and at the same time avoid the mischiefs which result from sub- jecting other classes of property to capture, and the uncertainty which attends the endeavor to maintain the existing rules. It is not necessary here to review the intricate mass of authorities on questions that would be superseded by the adoption of such a rule as is here proposed. If it were thought preferable to include all articles which may subserve the purpose of the war, the following clause might be added to Article 859 : " And all other articles necessary and intended for the maintenance of armaments and combatants." Goods on board ship exempt from capture. 860. All goods of whatever character, on board a ship that is exempt from capture, and not exceeding in INTERNATIONAL CODE. 5f)3 quantity that wMch may be required for the use of the ship and her crew, are exempt from detention or cap- ^ ture. Lushington'B Natal Prize Lam, p. 35, § 168. Contraband documents. 861. Documents are contraband, when they are offi- cial communications from or to officers of a hostile na- tion, and fitted to subserve the purposes of the war, but not otherwise. Sir William Scott interprets " despatches," treated of in the decisions ia warlike or contraband communications, to be " official communications of official persons, on the public affairs of the government." The Caro- line, 6 Gh. Bdbinson'a Rep., 465. But to this rule there is an exception in the case of communications to or from a neutral nation, or the hostile nation's ministers or consuls resident in the neutral nation. As to the effect of war upon the mail service, see Article 915. Contents of mails not contraband. 862. The contents of mails upon mail packets, owned or employed by any nation, are not contraband of war. This rule is suggested as a proper one, although the contrary is now recognized. Lushington, (Na/oal Prize Law, Introd., p: xii.,) says, that to give up altogether the right to search mail steamers and bags, when destined to a hostile port, is a sacrifice which can hardly be expected from belliger- ents ; citing Desp. of Earl Eussell to Mr. Stuart, November 20, 1863, Parliamentary Papers, No. Amer., No. 5, 1863. As to suspension of mail service, see Article 915. Detention and confiscation of contraband. 863. Things which are contraband of war are liable to capture and confiscation, and persons who are con- traband of war are liable to capture and detention, in the manner provided in this Book ; but the ship or con- tents thereof, not being contraband, are not liable to. condemnation nor detention, except as provided by articles 871 and 877. This rule is drawn from recent treaties, which provide that articles of- 554 OUTLINES OF AN" contraband, which may be found in a vessel bound to an enemy's port, shall be subject to detention and confiscation, leaving free the rest of the cargo and the ship that the owners may dispose of them as they see, proper. See the treaties between the United States and Bolivia, May 13, 1858, Art. XIX., 12 U. 8. Stat, at L., 1003. Venezuela, Aug. 27. 1860, " XIII., 12 Id., 1143. The harsher rules now in force between other nations may be briefly indicated thus : The penalty for carrying contraband goods is confiscation of the goods and the interest which the owner of them may have in the ship or in other goods on board. The ship in all cases forfeits her right to freightage on the contraband goods, and all right to expenses resulting from her detention. A ship carrying contraband goods with simulated papers, or in disre- gard of express stipulations by treaty, is confiscated, with any interest which her owner has in other goods on board. LusMngton's Namal Prize Law, p. 89, §§ 187-189. See also The Springbok, Blatehford'a Prize Gases, (U. 8. Diat. Gt.) p. 434 ; The Stephen Hart, Id., p. 387. The penalty for carrying contraband persons or despatches is the con- fiscation of the ship, and such part of the goods on board as belong to her owner. Lxtshington's Nwocd Prize Law, p. 40, § 196 ; p. 42, § 305. A ship which is contraband is liable to . be confiscated, together with such part of the goods on board as belong to her owner. Id., p. 42, § 208. See also The Bermuda, 5 Wallace's V. 8. Swpr. Gt. Bep., 28, 59. In Carrington v. Merchants' Ins. Co., 8 Peters' TT. 8. 8upr. Ot. Bep., 495, it was held to be a general rule that the penalty of confiscation at- tended the carriage of contraband goods to an enemy, when their capture is made in transitu; and that it applied to the vessel and remaining car- go, only when there has been some actual co-operation, on their part, in a meditated fraud upon the belligerents, by covering up the voyage under false papers and with a false destination. But that when the contraband goods have been deposited at the port of destination, and the subsequent voyage has thus been disconnected with the noxious articles, it has not been usual to apply the penalty to the ship or cargo upon the return voy- age, although the latter may be the proceeds of the contraband. And the same rule should seem, by analogy, to apply to cases where the contra- band articles have been deposited at an intermediate port on the outward voyage, and before it had terminated. In the case of The Isabella Thompson, Blatchford's Prize Gases, {U. S. Dist. Gt.,) p. 877, it was held, that a neutral consignee, at a neutral port, of a cargo delivered there by a vesssel which had brought it from a blockaded port of the enemy, acquired perfect title to it, as against per- sons who captured it as prize on its subsequent transportation on a neutral vessel, from such neutral port to another neutral port. Upon the pre- sumption that the cargo had been unlawfully brought from a blockaded port, and had been directly laden from the first vessel into the second iittIeenationai code. 555 vessel, the latter -witli her cargo might be properly brought into port for ud judication. And had any solidarity of interests between the two ves- sels in the entire voyage from the enemy's port to the last neutral port, been established by the proofs, or any complicity between them in the enterprise, the captors might well invoke the judgment of the court in condemnation of the enterprise. If the mild rule suggested in the foregoing Article be adopted, it should perhaps be provided that sailing for a port of an enemy with false or simulated papers, or using false colors shall be a ground for confiscat- ing the ship, and possibly also the cargo on board belonging to the owner of the ship. If the rule be thought too advanced for general adoption, it is sug- gested that it be declared that contraband goods subject the ship which is carrying them to detention and confiscation. Freightage of contraband. 864. A ship in which contraband of war is captured, forfeits the freightage thereof. The PeterhofE, 5 Wallace's U. 8. Swpr. Gt. Sep., 38, 61. By the present rule a belligerent nation is bound to pay to a neutral carrier an adequate remuneration for the carriage of goods which are seized upon his ship as contraband of war. And the adequacy of the compensation due for freightage is determined by the terms of the charter .party of the ship ; for, as stated by Twisa, (Law of Nations, pt. II., p. 155, § 80',) considerations of various kinds may have influenced the parties to the contract of affreightment, and may have rendered a contract for an advanced rate of freight real and fair between those parties, but the freight as a burden upon the belligerent captors, does not come loaded with these considerations. But the standard, by which the liability of 'the belligerent captor toward the neutral ship owner is to be measured, is the rate of freightage given for the carriage of similar goods under ordinary circumstances. 556 OUTLINES OF AN CHAPTER LXVI. VISITATION, SEARCH AND CAPTURE. Akticle 865. Right of visitation. 866. Ships under neutral convoy. 867. Ships under hostile convoy. 868. Duty of submission. 869. Mode of visitation. 870. Neither boat, persons nor papers to be taken from the ship, 871. Resistance by force. 873. Detention. 873. What is proper evidence. 874. Memorandum of visit to be indorsed on ship's papers. 875. Sending in for condemnation. 876. Prize incapable of being sent in. 877. Surrender of contraband of war. 878. Detention of persons and papers. 879. Detention in cases of suspicion. ~' 880. " Spoliation of papers " defined. 881. Passive enemies or neutrals on board captured ship. 883. Persons on board a captured armed public ship, or ship without colors. 883. When ship and cargo must be released. 884 Duty of prize ofBcer. 885. Persons and things captured as contraband to be brought before a prize court. ' 886. Restoration after unlawful capture. 887, 888. Liability of commander. 889. Rights of all ships to defend against attacks. 890. Salvage. RigM of visitation. 865. For the purpose of enforcing the provisions of this Book, concerning contraband of war, intercourse, and hostilities, every private or unarmed ship, whethet belonging to the enemy or to a neutral, on the high seas,' and not exempt by the next article because under con- INTEENATIOITAL CODE. 557 voy, is subject to visitation by an armed ship of a bel- ligerent. ' The right to visit within the territorial jurisdiction of the visiting nation is secured, both for peace and war, by Article 64. The right of visiting and searching merchant ships on the high seas, whatever be the ships, whatever be the cargoes, and whatever be the des- tinations, is an incontestible right of the lawfully commissioned ships of a, belligerent nation ; because till they are visited and searched it does not appear what the ships or the cargoes, or the destinations are, and it is for the purpose of ascertaining these points tliat the necessity of this right of visitation and search exists. This right is so clear in principle that no man can deny it who admits the right of maritime capture ; because if you are not at liberty to ascertain by suflScient inquiry whether there is prop- erty which can be legally captured, it is impossible to capture. Even nnder the rule that free ships make free goods, the exercise of this right must be admitted, for the purpose of ascertaining whether the ships are free or not. The Maria, Opinion of Lord Stowell, 1 Bdbingon'a Bep., 36. By the treaty between the United States and the ^R«rablic [ ^''^- ^' ^^^"^^ ^^^- ^"^^•' ^^ ^- ^- ^^*- "^ ^- (^^-^ ^^'^' Venezuela, Aug. 27, 1860, " XV., 12 Id., 1143, it is expressly stipulated that merchant ships in time of war, bound to an enemy'g port, shall be obliged to exhibit upon the high seas, or in ports or roads, passports and certificates showing whether their goods are ^Kintraband of war. Ships under neutral convoy. 866. A ship nnder convoy of an armed public ship of a neutral nation is not subject to visitation, if the commander of the convoy verbally give his word of honor that she is a ship of his nation ; and, if destined to a hostile port, that she contains no contraband of Tvar, ' and no property of the hostile nation, and is not ■engaged in illegal intercourse.' ' Treaty between France and Peru, March 9, 1861, Art. XXIII., 8 De Cl&rcq, 201. Treaty between the United States and ^ErubUc^f^®^- 8, 1867, Art. XIX., 15 JT. 5. fitoi. ai i., (Tr.,) 167. Venezuela, Aug. 26, 1860, " XVIII., 12 U., 1143. Bolivia, May 13, 1858, " XXIII., 13 Id., 1003. Substantially the same rule was adopted by Italy in the war of 1866 ^th Austria. Lushington's Namal Prize Law, Introd., p. viii., note. See also Wildmian'i International Law, v. 2, p. 121. 558 OUTLINES OF AN In the absence of treaty the right of search of vessels under neutral convoy is asserted. The Maria, 1 Ch. Robinson' » Rep. , 340. Twiss, {Law of Nations, Part II., p. 185, § 96,) says, that every bellig. erent cruiser has a right to insist on verifying the neutral character of every ship which it meets with on the high seas, and which carries a neutral flag ; and it is a clear maxim of law that "a neutral vessel is bound, in relation to her commerce, to submit to the belligerent right of search." A neutral merchant accordingly can not adopt any mea.sures, of which the direct object is to withdraw his commerce on the high seas from the free exercise of the right of search on the part of anj' belliger- ent cruiser. It is not competent, therefore, for a neutral merchant to exempt his vessel from the belligerent right of search, by placing it under the convoy of a neutral or enemy's man-of-war. Kent, (Commenta/ries, v. 1, p. 154,) says, that the very fact of sailing under the protection of a belligerent or neutral convoy is a violation of neutrality. Lushington, (Naval Prize Law, p. 5, §g 19, 20,) says, that if the state of the wind and weather permit, the commander should communicate his intention to visit by hailing, and then cause his ship to go ahead of the- suspected vessel and drop a boat alongside of her. If the state of the wind and weather render such a course impracticable, the commander- should require the vessel to be brought to. For this purpose he should give warning by firing successively two blank guns, and then, if neces- sary, a shot across her bows ; but before firing, the commander, if he has^ chased under false colors, or without showing his colors, should be care- ful to hoist the (British) flag and pendant. Compare Articles 65 and 66. ' The last clause is new. Ships under hostile convoy. 867. Ships of whatever character, under convoy of a public armed ship of the hostile nation, are liable to capture and confiscation as contraband of war. It may be thought better to retain this rule, upon the ground that the exemption of private property at sea would render military protection, by a belligerent unnecessary and offensive. Duty of submission. 868. Every ship subject to visitation, when hailed by a public armed ship of a belligerent nation, must shorten sail, and await the approach of the hailing-' ship ; and if required must submit to visitation as reg- ulated by the next two articles. INTERNATIONAL CODE. 559 Mode of visitation. 869. The visiting ship must send to the ship visited, a boat bearing the national flag of the former, and an officer in uniform,' who shall be received on board, and be permitted to examine the ship and her contents, and the papers relative to the character of both.' If, for any cause, it be impracticable to send a boat immediately, the commander may require the visited ship to lower her flag, and steer according to his orders.' ' LusMngton's Namal Prise Lcmo, p. 5, § 35. * Treaty between France and Peru, March 9, 1861, 8 De Olercq 201 Art. XXIII. ^ LusMngton's Namal Prize Law, p. 10, § 60. The Hercules, 2 Dod- son's Rep., 368 ; The Edward and Mary, 3 Gh. Bobinson's Sep., 806. If either boat, persons, nor papers to be taken from the ship. 870. The commander of the visiting ship can not re- quire any boat, person, or paper to be brought to hia ship from the ship visited, except as provided by arti* cles 877 and 878. LushingtoTi^ Namal Prize Law, p. 5, § 18. Treaty between the United States and the Dominican ) Feb. 8, 1867, Art. XVIII., 15 U. 8. Stat, at L., (2V.,T Eepublic, \ 167. Bolivia, May 13, 1858, " XXI., 12 Id., 1003. Venezuela, Aug. 37, 1860, " XVII., 13 Id., 1143. Resistance by force. 871. If the lawful exercise of the right of visitation or search be resisted by force, the resisting ship and the property on board belonging to her owner, are lia- ble to capture and to condemnation. Resistance alone, though not amounting to combat, is suflBciept ground for confiscation. WUd/man's Internaticmal Law, vol. 3, p. 122. If the clause as to convoy in Article 865 be not retained, it should be observed, that resistance by the convoying ship is a resistance by the whole convoy ; (Wildman's Intern. Law, vol. 2, p. 124, citing, The Elsabe, 4 MoMnson's Sep., 408 ;) and that sailing under instructions to resist is equivalent to resistance. (lb.; citing The Maria, 1 Bobinson's Sep., 374.) 560 OUTLINES OF AN Detention. 872. If upon visitation and searcli tlie commander of the visiting ship be satisfied that there is proper evi- dence, amounting to probable cause," for the detention of the ship, under the provisions of this Code, he may detain her. It is his duty to give the master an oppor- tunity of explanation, if the case admit of doubt. LuMngtorHs Nwoal Prize Law, p. 9, § 63. The right of detention for inquiry is a corollary to the right of visita- tion and search. If the commander of a belligerent ship of war, hav- ing examined the papers found on board a merchant vessel, perceive just and sufficient reasons for detaining her, in order to proceed to a further examination, he may order a prize crew to go on board of her and conduct her to the nearest port belonging to the nation, subject to a full responsibility in costs and damages, if this should have been done without just and sufficient cause in the opinion of a duly constituted court of prize. Twiss, Law of Nations, pt. II., p. 184, § 95. Lord Stowell, in his opinion in the case of The Maria, 1 Oh. Robinaon't Rep., 374, said, " It is a rule of law that the neutral vessel shall submit to the inquiry proposed, looking with confidence to those tribunals whose noblest office, ... is to relieve by compensation inconveniences of this kind, if they have happened through accident or error, and to redress by compensation and punishment injuries that have been committed by de- sign." ' To constitute a probable cause of capture, it is not necessary that there should be presumptive evidence sufficient to condemn. It is suffi- cient, if there be circumstances which warrant a reasonable suspicion of illegal conduct. The George, 1 Mason's U. S. Giro. Ct. Sep., 34, 39. What is proper evidence. 873. The proper evidence, mentioned in the last arti- cle, is such as will be admissible before the prize court. It includes : 1. Facts appearing by inspection — as the character of the ship, her equipment, cargo, crew, and pas- sengers ; 2. The papers on board of her ; and, 3. The testimony of her master and crew. Lushmgton, {Namal Prize Law, p. 9, § 54,) adds, that the commander should rememember that evidence of the captors in their own behalf will not be received by the court, at least in the first instance. See The For- tuna, 1 Dodson's Sep., 81; The Charlotte Caroline, ld.,W2, 199; The INTERNATIONAL CODE. 561 Heinrich and Maria, 4 Gh. Robinson's Rep., 57 ; The Haabet, Id., 54 ; The Qlierktigh, 6 Id., 58, n ; The Aline and Fanny, 10 Moore, P. C. 332. By the treaty between the United States and the Dominican ) Feb. 8, 1867, Art. XVII., 15 TJ. 8. Stat, at L., (Tr ) Republic, j 167, Venezuela, Aug. 27, 1860, " XVI., 12 Id., 1143, if it does not appear from the ship's certificates that there are contraband ^oods on board, she shall be permitted to proceed on her voyage. Memorandum of visit to he indorsed on ship's 'papers. 874. It is the duty of the visiting officer to write upon, or attach, to the passport or other document sup- posed to determine the national character of the ship visited, a memorandum of the visit or search, specifying date and place, and the name of the visiting ship and commander, and to sign his name to the same with the addition of his rank. LusMngton's Naval Prise Law, p. 6, § 33 ; p. 8, § 50. The instructions to British commanders, in LusMngton's Naval Prize Law, require the officer having made visitation or search to inquire if the master of the ship has any complaint to make of the manner of the act, or on any other ground, and if so, ask him to reduce it to writing. Also that a memorandum of the visit should be made on the ship's passport. Sending in for condemnation. 875. Except in the cases otherwise provided for in the next two articles, every private ship detained, must be immediately sent to the nearest safe port of the cap- tor' s nation' for adjudication on the validity of the capture," whether of ship or contents.' Treaty between France and Peru, March 9,1861, Art. XXV., 8 Be €lercg, 202. ' Lushington, (Na/vai Prize Law, p. 14, § 76,) states the following rules for selecting the port of adjudication. It should, 1. Be capable of giving safe harborage to the ship ; 2. Be large enough to admit her without unlivery of cargo ; 3. OfEer easy communication with the prize court ; and, 4. Be as near as possible to the place of capture. In the case of The Fanny, 1 Lodson's Rep., 443, Lord Stowell held, that if a neutral merchant ship his goods on board an armed ship of the enemy, he betrays an intention to withdraw his goods from visitation and 562 OUTLINES OF AN search, — for it is a. presumptiojuris et dejure that an armed ship will re-r flist visitation and search, — and is deemed to have abandoned the protec- tion of neutrality, and to have adhered to the enemy. But in the opinion of Chief Justice Marshall, in the case of The- Nereide, (9 Oraneh's U. 8. Supr. Ot. Bep., 388,) " a neutral merchant had a right to charter and lade his goods on board a belligerent armed vessel without forfeiting his neutral character : " and the same opinion was helit in The Atalanta, 3 Wheaton's U. S. Supr. Gt. Sep., 341. * This applies the rule of adjudication to public property of an enemy on a private ship, but not to private property found on a public ship of an enemy. ^ Contraband despatches, or persons captured at sea, wholly or partly by the agency of naval forces, must be brought in with the ship uponf which they were taken, for the like adjudication. See Mr. Seward'x letter in the Trent case. Prize incapable of being sent in. ' 876. If the captured ship or cargo be not in a condi- tion to be sent into port for adjudication, the captor must cause a survey and appraisement to be made, and the re- port to be sent to the prize court; but if any of the prop- erty can be sold, it must, unless appropriated for the- use of the government of the captor, be sold," and the- proceeds deposited with the authorized officer of the- captor's nation, subject to the order of the prize courfe Suggested by act of Congress of the United States, June 30, 1864, § 1,. 13 TJ. 8. 8tat. at La/rge, 806. ' By the present rule, the sale may be made in any neutral port wheri the local authorities will allow the same to be brought in and sold. Lunhington' a Namal Prize Law, p. 17, §§ 90, 96 ; but Division V., ooncera- Ing Neutbals, forbids such use of neutral ports. Surrender of contraband of war. 877. When only the contents of a ship or some of them are subject to condemnation under the provisions of this Book, and they are surrendered by the officer in command, the ship and the rest of the contents remain free, except that if the seizure be made at sea, and the persons or things surrendered can not be transhipped without grave inconvenience, the ship and all its con- tents may be sent in as provided in article 875. INTERKATIOKAL CODE. 563 Treaty between France and Peru, March 9, 1861, 8 Be Clereq, 300, Art. According to the treaty between the United States and Bolivia, Art. ;XIX., May 13, 1858, 13 U. 8. Stat, at L., 1003, no vessel shall be detained on the high seas on account of having on board articles of contraband, when- ever the master, captain or supercargo of the vessel will deliver up the articles of contraband to the captor, unless the quantity of such articles be so great or of so large a bulk that they can not be received on board the capturing ship without great inconvenience ; but in this as well as in all other cases of just detention, the vessel detained must be sent to the nearest convenient and safe port for trial and judgment according to law. By the treaty between the United States and the ^R^p^bHc" \ ^^^- ^' ^^^'^' -*■"■*■ ^^^^- 15 ^- '^- '^'"■*- "■* ^■' (^'■■■) 167. Venezuela, Aug. 37, 1860, " XVI., 18 Id., 1143. if it shall appear from any ship's certificate that there are contraband goods on board, and the commander of the same shall offer to deliver them up, they shall be received on board the belligerent ship of war, and a receipt given therefor, and the ship shall then be at liberty to pursue her voyage, unless the quantity of the contraband goods be greater than -can conveniently be received on boai d the belligerent's ship of war; in which case, as in all other cases of just detention, the ship shall be car- Tied into the nearest safe and convenient port for the delivery of the same. See also Katchenovsky's Prize Law, by Pratt, p. Il8. The principle recognized by these treaties commends itself to general adoption. The difficulty which it presents in the case of contraband per- sons and dispatches, in relinquishing the existing method of adjudication, may perhaps be obviated by the adoption of a more simple and direct procedure in such cases. See Chapter LXVIII., concerning Pkizk. Detention of papers and persons. 878. The commanding oflBicer of any ship making a ' capture must, 1. Secure the papers found on board of the captured ship which relate to the prize, and make an inventory of the same, seal them up, and send them, with the inventory, to the prize court in which proceedings are to be had,' with a written statement that they are all the papers found, and in the condition in which they were found, or explaining the absence of any, or any -change in their condition ; 2. Except in the case of a surrender provided for 564 OUTLINES OF AN by article 877, he must send in as witnesses, the master,, one or more of the other officers, the supercargo, purser or agent of the captured ship, and any person found on board whom he may suppose to be interested in the captured ship, or to have knowledge respecting its title, national character, or destination ; 3. He must send, in charge of the captured ship, if it be sent in, a competent prize master and crew ' to navigate the ship ;* 4. He must give a receipt for such of the papers of the ship as he retains, which receipt must be annexed to a copy of the papers ;* and when persons or things are taken out of the ship as contraband, he must give a receipt therefor, signed by. him, with the addition of his rank ;° 5. He must allow the master and a sufficient num- ber of the officers and crew of the captured ship to re- main on board, to secure the ship and its contents from unlawful interference, until they are delivered into the custody of a prize court ; ° 6. He must allow all other persons on board, not impressed with the military character of the enemy,, nor duly charged with offenses against the captor's na- tion, under the provisions of this Book, to remain on board until they reach port,' if they choose, unless the safe navigation of the ship require their removal.' ' TKe custody of the papers of captured vessels belongs exclusively ta the prize court. It is the duty of the captors, immediately upon arrival in port, to deliver, upon oath, all the papers of the captured vessel into the registry of the prize court. The Diana, 2 QaUison's U. 8. Oire. Ct. Sep., 93. " Thus far suggested by Act of Congress of the United States, June 30, 1864, § 1, 13 U. 8. 8tat. at Large, 306. ' The rule, that captors ought to allow some of the officers and crew of a captured vessel to remain on board of her, has no reference to the navigation of the ship. It is adopted with a view to prevent embezzle- ment and fraud, and to bring before the prize court persons who can speak to the national character and proprietary interests of the ship and cargo. The captors are not bound to allow the captured crew to navigate- INTERKATIONAL CODE, 'jGS the ship, nor are tlxe latter bound to perform such duty. The captors are bound to put on board a suflSeient crew to navigate the ship. The George, 1 Mason's U. S. Ore. C't. Sep., 34. Lushington, {Naval Priee Lane, p. 15, § 79,) says, that the commander should invite, but can not coerce, the master and crew to aid in naviga- ting theprize into port. • Treaty between the United States and the ^R^ubli^ [ ^^^- ^' '^^^'^' ■^'^- ^^•' ^^ ^- ^- ^^"'*- «* ^•> (^'■■') ^67. Venezuela, Aug. 27, 1860, " XIX., 13 Id., 1143. Hayti, Nov. 3, 1864. " XXVI., 13 Id., 711. ' This clause is new. • It is provided in the treaty between the United States and the °°^^uWrc, [ ^''^- ^' '^^^'^' ■^^*- ^^^•'' ^^ ^- ^- ^''"'*- «*I'.,{Tr.;) 167. Venezuela, Aug. 37, 1860, " XX., 13 Jd, 1148, that it shall not be lawful to remove the master, commander or super- cargo of any captured ship from on board thereof, during the time the ship may be at sea after her capture, or pending the proceedings against her, or her cargo, or anything relating thereto. And Lvshington, {Navai Prise Lam, p. 30, § 110,) says, that the prize master can not subject the master and crew of the captured ship to any unnecessary restraint. ' Persons found on board of a captured vessel do not pass wiih the vessel and cargo into judicial custody. They are subject to the control of the court for their examination ; but when the business of the court does not require their detention as examinants, the discharge or deten- tion of such persons rests with the officers of the naval service according to its rules. The Salvor, (B, Dist. of Pa.,) 4 PhUadelpMa Sep., 409. The French courts hold that they are prisoners of war. Barboux Jwnspr. du wnseU des Prises, (Paris and London, 1873.) • This exception should of course, be recognized in framing a positive rule. Detention in cases of suspicion. 879, A private sMp may be detained by a belligerent on the following grounds of suspicion, if not explained to the satisfaction of the commander ;' 1, Carrying no passport such as is required by arti- cle 278 ; " 2, Carrying any false or simulated passport or other papers affecting the character of the ship, contents or voyage, such as certificate of registry, sea letter, charter- party, logs, builder's contract, bill of sale, bills of lad- 566 OTTTLINES OF ADT ing, invoices, manifest, clearance, muster roll, shipping articles, bill-- of health, &c. ; 3. Carrying papers which, in any respect material to the question of contraband, are inconsistent with each other, or with the declarations of the master to the visiting officer ;° 4. Withholding from the visiting officer any papers material to the character of the ship, contents or voy- iage; 6. Spoliation of papers, of any kind, that were on board the ship ;* and, 6. Using false colors or signals, to deceive the bel- ligerent.' ' Tlie first five subdivisions are in substance taKen from Lushington's If ami Prize Law, p. 24, §§ 124-163, where a list of the usual ship's papers for each of the leading commercial nations is given. * Ships must be furnished with sea letters or passports, expressing the name, property and bulk of the ships, as also the name and place of habitation of the master and commander of the ship ; and when laden, they shall also be provided with certificates containing the several par- ticulars of the cargo, and the place whence the ship sailed, which shall be made out by the oflScers of the place whence the ship sailed ; and when without these papers, ships may be detained, to be adjudged by the competent tribunal, and may be declared legal prize, unless the defect of papers shall prove to be owing to accident. Treaty between the United States and Bolivia, Art. XXII., May 13, 1858, 12 £7". 8. Stat, at L., 1003. A passport is issued in the nam^ of a sovereign power or State ; but ji " sea letter" or " certificate" is issued in the name of the civil au- thorities of the port from which the vessel is fitted out. Tmss, in Ws Lam of Nations, pt. II., p. 183, § 94, states the present rule to be, that where treaties exist in regard to the exhibition of a pass or sea letter, such ships only as are furnished with the specified pass or eeal'etter are entitled to the treaty privileges, whatever they may be. In other cases the pass is not in the present day an indispensable document, if there are other papers on board, which satisfactorily establish the character, property and destination of the ship and cargo. Amongst them the most important is the builder's contract, or the bill of sale, in case the ship has never changed owners ; and in addition the certificate of registry, if the municipal law of the port, from which the ship hails, re- quired that she should be registered. If these two papers are on board ^nd their hona fides is not impeached, the proof of the property as re- INTEKNATIOKAL CODE. 667 gards the ship will be suflSciently complete, so far as documentary evi- ■deuce is concerned. With regard to the cargo, if the ship is a general ship, her manifest and the UUs of lading are the best evidence of both the •ownership and the destination of the cargo. If, on the other hand, the vessel should be chartered, the charter-party should also be on board ; but the absence of the charter-party will not justify the condemnation of the ship, any more than the absence of the invoice of the goods ; but the non-production of any ship's paper, which is in strict law documentary evidence either in regard to the ship herself or to the cargo, will justify the sending the vessel into port for inquiry, in order that the master may account satisfactorily before a court of prize for the absence of the miss- ing document. ' A nation can not be bound by the flags or papers used by a ship ; but can go behind the ostensible neutral character indicated by these, and ascertain the actual character. The belligerent may hold the ship con- cluded by the fact of having used the flags and papers she has knowingly carried, if that result Is favorable to the interests of the belligerent. DaTM's Wheaton, Mem. of Intern. Law, % 340, note 168. ■* It is no excuse for spoliation to allege that the papers destroyed were private papers not afEecting vessel or cargo. The Two Brothers, 1 Gh. Robinson's Bep., 133. In the case of The Pizarro, 3 Wheaton's U. S. Supr. Gt. Jtep., 827, it was held, that concealment or spoliation of papers is not of itself a sufiS- cient ground for condemnation in a prize court. It is undoubtedly a cir- cumstance calculated to excite suspicion. But it is open to explanation, for it may have arisen from accident, necessity, or superior force ; and if the party in the first instance fairly and frankly explain it to the satis- faction of the court, it deprives him of no right to which he was other wise entitled. » See Articles 61, 764, and 766. " Spoliation of papers^^- defined. 880. Spoliation of papers is the willful destruction or throwing overboard of any papers on board a ship, for the purpose of deceiving a belligerent. Passive enemies or neutrals on hoard captured sJiip. 881. Passive enemies or neutrals on a captured ship, if they are not contraband of war, nor charged with an offense against the provisions of this Book, are entitled to immediate release, except that if required as wit- nesses they may be carried into the port of adjudication 37 568 OUTLINES OF AN and detained according to law, until their testimony- can be secured, and no longer. Instructions of United States Navy Department, of May 9, 1864, modi- fied so as to include all passive enemies as well as neutrals. It is provided by the treaty between the United States and the °E^'°uWic f Art. XXL, Feb. 8, 1867, 15 CT. 5. Sto«. ai £., (^r.,) 167. Venezuela,' " XX., Aug. 37, 1860, 13 /d, 1148, that in all cases where a vessel of the members of either nation shall be captured or seized or held for adjudication, her officers, passengers and crew shall be treated hospitably, and shall not be imprisoned or deprived of any part of their wearing apparel, nor of the possession and use of their money, not exceeding for the captain, supercargo, mate and passengers, five hundred dollars each, and for the sailors one hundred dollars eacli. Persons on board a captured armed public ship or sMp without colors. 882. Persons captured in a public armed ship or in a ship without passport or colors, are prisoners of war, unless they are passengers only, having no interest in ship or cargo, and not charged with an offense against the provisions of this Book. Instructions of United States Navy Department of May 9, 1864, ex- tended. When ship and cargo must be released. 883. The ships visited, and articles not transhipped under article 877, though found proper to be detained, must be released by the commander of the visiting ship, in either of the following cases : 1. If the surveying officers report the ship to be not in a condition to be sent to a proper port ; 2. If the commander is unable to spare a prize crew to navigate the ship ; or, 3. If, after detention, further facts come to his knowledge, showing that the ship has been improperly detained. Lushington's Nomal Prize Lam, p. 18, § 100, omitting the exception by which ships belonging to the enemy may be destroyed. Duty of prize officer. 884. The prize officer of a captured ship must make INTERNATIONAL CODE 569 Ms way diligently to the selected port, and deliver to the proper authorities of his nation the documents and papers and the inventory, and make affidavit that they are the same, and in the same condition as delivered to him by the commanding officer of the ship making the capture, or explaining any absence or change of condi- tion therein, and that the prize is in the same condition as delivered to him, or explaining any loss or damage thereto ; and must deliver the persons sent as witnesses into the custody of the prize court, and retain the prize in his charge until it shall be taken therefrom by process from the prize court. Act of Congress of the United States, June 30, 1864, § 3, 13 U. 8. Stat. at Large, 306. Persons and things captured as contraband to he ir ought before a prize court. 885. Except in the case of a voluntary surrender, by the master of a ship captured or detained, as pro- vided in article 877, or of a sale under article 876, all persons and things captured at sea as contraband of war, must be brought on shore in presence of the com- petent officers of the prize court, and an inventory of such things be made by them ; and any interference with such persons or things, and any sale of the things, without lawful process of a prize court, is unlawful. Treaty between the United States and ^E^'^bir" [ ^^^- ^' ^^^''' -^'■*- ■^^•' ^^ ^' ^- ''^'''*- ** ^' ^^'"•'^ ^^'''• Venezuela, Aug. 37, 1860, " XIX., 13 J(i., 1143. Restoration after unlawful capture. 886. It is the duty of a belligerent, having seized persons and things in violation of the provisions of this Book, to set such persons at liberty, to restore such things to their owners, and to give indemnity for the injury. By the existing rule, a prize captured in violation of neutrality is only restored on demand of the neutral nation ; but it seems to be in harmony 570 OUTLINES OF AK ' with the other provisions of this Book, to disallow this qualification of the obligation, although the usual mode of obtaining redress may be by application of the neutral government. Lushington, (Naoal Prize Lam, p. 62, §§ 366, 267,) says, that a ship in neutral territorial waters is not liable to visit, search, or detention, even though beyond those limits when first descried or chased. And he adds, that if a commander ascertain that his capture was made ii'such waters, he must release the prize, if express application be made by the authori- ties of the neutral territory. Liability of commander. 887. The commander ' of a visiting ship is responsi- ble, in person and property, for making a capture with- out probable cause ;' and for all losses by inevitable accident resulting therefrom, during the detention of the ship ;' for any extortion, insult or violence * caused to persons on board the visited ship ; for any embezzle- ment," wrongful spoliation of property ° on board such ship, or other abuse of his lawful authority ;^ and, upon a restoration of the property, for any loss occurring to ship or cargo from neglect of ordinary care in respect thereto,' or in consequence of a deviation from a direct route to the port of adjudication •' for unnecessary de- lay in sending the ship into port, " or in initiating or prosecuting proceedings for adjudication." ' The existing rule in respect to captures by public ships is, that the actual wrong-doer alone is responsible for any wrong done or illegality committed on the prize, excepting acts done by members of the seizing vessel in obedience to the orders of their superiors. The Louisa Agnes, (Blatehford's Prize Cases, U. S. Digt. Ot.,) p. 107. By the above Article the commander alone is made responsible ; but perhaps the liability should be extended to others engaged with him. '' Every marine- capture is at the peril of the party. The captor must show just grounds for the violence, or he is liable for damages. Miller V. The Resolution, 2 Dallas, (Fed. Ct. of App) Hep., 1 ; Del Col v. Ar- nold, 3 Dallas' (U. S. 8upr. Ot. Bep.) 333 ; Murray «. The Charming Bet- sey, 3 Cranch's U. 8. Supr. Ot. Bep., 64 ; Nealey «. Shattuck, 3 Id., 458 ; affirming S. C, 1 Washington's U. 8. Ore. Ot. Bep., 345 ; Hollingsworth V. The Betsey, 3 Peters' Adm. Bep., {U. 8. Dist. Ot.,) 330. A belligerent cruiser that with probable cause seizes a neutral and takes her into port for adjudication, and proceeds regularly, is not a wrong-doer ; the act is not tortious. The order of restoration proves that INTERNATIONAL CODE. 571 the property was neutral ; not that it was not taken without probable cause. Jennings ». Carson, 4 Granch'a IT. 8. Supr. Ot. Sep., 2. To sim- ilar effect, The Liverpool Packet, 1 Gailison's U. 8. Oirc. Ot. Bep., 513 ; The Rover, 2 Id., 240 ; Maisonnaire ». Keating, 2 Id., 328. If a captor transcend his powers and rights, he becomes guilty of a marine trespass, and is amenable in damages for the injury sustained ; and where the vessel has been lost in consequence of such illegal acts, the value of the vessel, the prime cost of the cargo, with all charges and the premium of insurance, are to be allowed in ascertaining the damages. The Anna Maria, 2 Wheaton's U. 8. Supr. Gt. Bep., 327. If a ship be detained without probable cause, the liability of the com- mander extends, says LusMngton, {Naval Prize Law, p. 9, §§ 56, 57,) to the extent of making good losses by inevitable accident while the prize was in his hands. If there was probable cause, he is not liable for casualties. ' By the treaty between the United States and the ^r ubliT [ ^^^- ^' '^^^''' '*■'■*• ^"^"I- 15 ^- ^- ^'^^ '^ ^■> (^•') ^^'^■ Bolivia, May 18, 1858, " XXI., 12 Id., 1003, the commanders of the public armed ships of either nation are made responsible with their persons and property for any extortion, violence or ill-treatment caused, when visiting ships of the other nation on the high seas. And by the treaty between the United States and Venezuela, Aug. 27, 1860, Art. XXII., 12 U. 8. 8tat. at L., 1143, the commander is also made liable for all damages, and the interest thereof, of whatever nature the damages may be. ' Lughington's Namal Prize Law, p. 20, § 109. « Misconduct on the part of the captors, — e.g., a wrongful spoliation of property on board a prize, or separation of the officers or crew from her, may destroy the legality of the capture, and subject the captors, person- ally, to punishment for the infringement of the laws of maritime warfare. The right of seizure by the belligerent is dependent upon the lawful use of that power by the captors at sea. The Jane Campbell, Blatchford' a Prize Cases, (V. S. Dist. Ct.,) 101. ' Treaty between France and Peru, March 9, 1861, Art. XXV., 8 Be Clercg, 201. » There is no rule of law which requires a captor to- exercise extraor- dinwry diligence in the care of a prize. The case is not distinguishable in this respect from that of a bailment, beneficial to both parties ; and the captor is liable for ordinary diligence only. The George, 1 Mason's U. a. Ore. Gt. Bep., 24. » The commander is bound to use the strictest care. Omission to em- ploy a pilot in places where pilotage is usual is want of care. Lushing- ton's Naval Prize Law, p. 19, §§ 105-108. ' "> LusUngton'a Nmol Prize Law, p. 13, § 71 ; and cases cited. " m., p. 21, § 115. 572 OUTLINES OF AN The same. 888. The commander of a visiting ship is responsible in damages for the wrongful acts of all under his com- mand, whether he himself be present or absent, when they are committed. He is not exonerated by being under a superior oflEicer, unless the latter was actually present and co-operating, or issued express orders to do the act in question. Lushington's Namal Prize Law, p. 2, § 7 ; The Mentor, 1 Ch. Bobinaon's Bep., 179 ; The Diligentia, 1 Dodson's Rep., 404 ; The Actseon, 2 lA., 48 ; The Eleanor, 2 Wheaton's U. S. Bwpr. Ot. Sep.. 346. Might of all ships to defend against attack. 889. Subject to the provisions of this Chapter, every ship, whether public or private, has a right to repel the attack of an enemy,' and to capture and send in as prize the attacking ship." ' Haven v. Holland, 3 Mason's U. 8. Oirc. Ct. Rep., 230 ; The Marianna Flora, 11 Wlieaton's XT. 8. 8upr. Ct. Sep., 1 ; aflBrming 3 Mason's U. 8. Circ. Ot. Bep., 116. « The Anne, 3 Wheaton's C 8. Ore. Ct. Sep., 485. Salvage. 890. Where property captured in war is recaptured at sea, the recaptors may send it into a court of adjudi- cation, in order to have their claim of salvage estab- lished. See SallecJe, Intern. Law and Laws of War, p. 867 ; and note to Article 893. CHAPTER LXVII. BLOCKADE. It is thought that the abandonment of the right of making purely com- mercial blockades will be but a small sacrifice of belligerent power, compared with the immense diminution it will effect in the evils of war. It has been remarked by Lunhington, [Navai Prize Law, Intro.. INTERNATIONAL CODE. 673 p. xiii.,) that the effect of steam commerce will be to make such block- ades, if not more rare, at any rate, of less significance than formerly ; since only to ports very exceptionally situated will the temporary loss of maritime intercourse be a very serious matter ho long as there is left open to them land communication by railway. Article 891. Objects of blockade. 892. "Military port "defined. Objects of blockade. 891. A belligerent may blockade military ports, and no others, and so far only as is necessary to capture contraband of war. ' ' Military port ' ' defined. 892. A military port is a fortified port or one occu- pied by a military force larger than is necessary for the preservation of domestic order. The principal existing rules, as modified by modern treaties, may be Indicated as follows : 1. Objects of iloekade. A belligerent may blockade all or any part of the coasts, ports and roadsteads of the hostile nation, so far as necessary for attaining the object of the war. A war must exist de facto ; but a civil war in which one party claims sovereign rights as against the other, is within the rule. Prize Cases, 3 Black's U., 3. Supreme Court Bep., 635. And in the case of The Mary -Clinton, Blatchford's Prize Gases, {U. 3. Dist. Gt.,) 556, it was held that the proclamation of the blockade is sufficient and conclusive evidence ■of the existence of the war. 2. Glasses of blockades. Blockades are either, 1, simple ; or, 2, public. A public blockade is one which has been duly notified to other nations ■by the nation establishing it. All others are simple blockades. In the case of a simple blockade, captors are bound to prove its exist- ence at the time of capture ; while in the case of a public blockade, the claimants are held to proof of discontinuance, in order to protect them- selves from the penalties of attempted violation. The case of The Cir- cassian, 3 Wallace's U. 8. Supr. Gt. Bep., 135, (see Bluntschli, Droit In- ternational Codifle, § 831), allows an effective blockade in anticipation of notice. 3. Authority of officer. A blockade of any port established by a com- manding officer is not void for want of special authority, unless dis- -avowed by his government. Some authorities question the right of an 574 OFTLIH-ES OP AN officer to establish a blockade without instructions, if he be near enough to the government to enable him to receive them ; but the better opinion seems to be that the neutral can not impeach the officer's authority so- long as the act is not disavowed by his government, Halleck, Intern. Law and Laws of Wa/i; p. 537 ; and see The Circassian, 3 Wallace's U. 8. Supr. Ot. Bep., 135 ; In re Rolla, 6 Robinson's Adm. Bep., 364 ; Cam- eron V. Kyte, 3 Enwpp, P. C. 33a. 4. Notice. A private neutral ship destined for a blockaded port can not Ije seized, unless notice of the blockade has first be" n given to it, and indorsed upon its papers by a ship of the blockading squadron. The in- dorsement must state the day and the place of giving such notice.. Treaty between France and Peru, Art. XXII., March 9, 1861, 8 Be- Clercq, 201. The same rule was adopted by Italy in the war of 1866, with Austria. Lushington's Naval Prize La.w. Introd., p. ix., note. The mere intention to enter a blockaded port unconnected with any other fact, is not sufficient for the condemnation of a neutral vessel. The treaty between the United States and Great Britain provides that every vessel may be turned away from every blockaded or besieged port or place, which shall have sailed for the same without knowledge of the blockade or siege ; but she shall not be detained, nor her cargo, if not contraband, be confiscated, unless, after notice, she shall again at- tempt to enter ; but she shall be permitted to go to any other port or place she may think proper. And this treaty is conceived to be a correct exposition of the present law of nations upon this point. The intention- must be manifested in such manner as to be equivalent to an attempt Fitzsimmons v. Newport Ins. Co., 4 Cranch's U. 8. Supr. Ot. Bep., 185. See also treaty between the United States and '^Sicililr" i^°*- ^' ^^^^' ^'■'- "■• ^^ ^- ^- ^*"'*- '^*^-' ^^^ Bolivia, May 13, 1858, " XX., 13 Id., 1003. Venezuela, Aug. 27, I860, " XII., 13 Zd, 1143. ^Betuw'c, [^«^- 8.1867. 15 / The invoking of such friendly offices, which has already been done with the most advantageous results, now requires the consent of the bel- ligerent, to which the representatives of friendly powers undertaking such offices are accredited. See Foreign Relations of the United States, 1870, p. 119, et seq. The adoption of the above Article would give neutral representatives a right thus to intervene. The present rule of the United States government requires the consent of both the nations concerned. Foreign Relatione of the United States, 1871, p. 543. Rights of public agents of neutral nation accredited to belligerent nation. 912. Public agents appointed or accredited by a neutral nation to a belligerent, have a right, notwith- standing the war, to go to and remain at their posts ; ' to send or receive their official dispatches under the official seal of themselves or their governments ;" and to pass through the military lines of the hostile nation, together with their families, official and personal, when necessary for the purpose of reaching or removing from their respective posts. ' Letter of Mr. Fish, Foreign Belations of the United States, 1871, p 401. * In the Franco-Prussian war, during the seige of Paris, the official dispatches between the government of the United States and their lega- tion in Paris, were transmitted to and fro, across the lines, by the bellig- erents, subject, however, to delay imposed by the military forces. Pri- vate correspondence and newspapers were also allowed transmission into Paris in the official dispatch bag, the former being, examined to exclude everything relating to the war, and newspapers being passed on a pledge that they should only be read by the American minister. Foreign Rela- tions of the United States, 1871, pp. 383-287. The right of the neutral government to communicate with its repre- sentative in the besieged city, was not fully conceded by Count Bismarck 686 OUTLINES OF AN (Id., pp. 291, 363,) although he was understood by the government of the United States to have conceded it. {Id., p. 377.) But his refusal to rec- ognize it was based partly on the plea that a fortified capital was unprece- dented ; (Id., p. 378,) and partly upon the plea that the French Republic had not been recognized by the German powers. Id., p. 365. Perhaps the same right of communication with the hostile nation should be secured to those public agents who under the last Article may have undertaken to use their friendly otBces in behalf of its members. ' See Letters of Count Bismarck, Foreign Relations of the United States, 1871, pp. 293, 373 ; Letter of Mr. Fish to Mr. Bancroft, Id., p. 377. Interdiction of entrance of foreigners. 913. A belligerent may by interdiction render unlaw- ful the entrance of passive ' enemies into its territory ; ' and may close any or all of its military ports, in the manner and to the extent provided in Chapter LXVII;, entitled Blockade. ■ The entrance of active enemies is of course a lawful hostility. Interdiction of communication. 914. A belligerent may, in case of military neces- sity, suspend, wholly or in part, railway and tele- graphic communication across its territorial bound- aries. Mail service. 915. The mail service shall not be affected by war between the corresponding nations, until after one na- tion has received from the other a notification of its re- striction or suspension of postal communication.' The mail service between a belligerent and a neutral nation shall not be affected by war. ' Postal convention between Great Britain and FraiK^fi SfiDt 24 iRiiR Art YT i -^ccounts and Papers, 1857, vol. J^ ranee, bept. M, 185b, Art. XI., j XYUI., (11 ;) 7 Se Clercg, 153. Belgium, Oct. 19, 1844, " VIII., j ^"j^J^** «"'* -P"?*™' ^^^^' ■^°'- These treaties also provide that upon a notiflcation by one belligerent of the discontinuance of postal communications with another, the mail packets of the two countries shall be permitted to return freely and under special protection to their respective ports ; which is sufficiently em- braced in Articles 845, 933, and 933. .INTERNATIONAL CODE. 587 Tlie postal convention between the United States and Great Britain, Dec. 15, 1848, Art. XX., 9 U. 8. Stat, at L., (Tr.,) 146. Mexico, Dec. 11, 1861, " IX., 12 Id., 1205, each provide that the mail service shall continue until six weeks after a notification shall have been made of the discontinuance of postal com- munications. And by the postal convention between the United States and Bremen, March 38, 1864, 16 JI. 8. Stat, at L., {Tr.) 177. Hamburg, " " 16 Id., {Tr.) 182, it is provided that, whenever in consequence of war, or threatened war, the correspondence between the two nations can not be conveyed by steamers of either nation, it may be conveyed by steamers under neutral flags, subject to all the regulations contained in the postal conventions between the two nations. Foreigners' rights of residence and vocation. 916. Members of a belligerent nation and neutrals, who are within the territorial jurisdiction of the hostile nation at the declaration or commencement of war, may remain and continue their vocation therein, subject to the provisions of Book First of this Code,' so long as they continue wholly passive, and commit no offense against the provisions of this Code, or the laws of the place. But in case of a breach of such condition, they may be punished or sent out of the territory of the na- tion, or be required to remove to any designated place within it." ' The provisions referred to make foreigners sabject to the general laws of the country, (Articles 319, 328, 330, and 381,) and reserve the right of a nation to exclude them from offices, official trusts and particular vocations. Twis.t, (Law of Nations, Vart II., p. 90,) urges a distinction between domiciled and transient alien enemies — a distinction once perhaps sub- stantial, but now, with increasing rapidity of intercommunication, be- coming every day Jess important. Heffter says, that a temporary deten- tion of hostile subjects may be necessary to prevent them from commu- nicating with their fellow countrymen, in respect to the plans of the belligerent. Heffter, § 126, 2, cited by Tvms, Law of Nations, Part II., 1'. 99. Vattel, however, (Droit des Gens, liv. 3, ch. 4, § 63,) says, that the sovereign who declares war can not detain those subjects of the enemy who are within his dominions at the time of such declaration ; and that they are to be allowed a reasonable time to withdraw, because, by per- 588 OTJTLIBTES OT AN mitting them to enter liis territories, he tacitly promised them protection, and security for their return. The Article here proposed is drawn from the usual provisions in modern treaties, to the effect that at the time of war or interruption of friendly intercourse between the two nations, the members of either na- tion residing or established in trade or other employment within the ter- ritory of the other, who choose to remain, may do so, and carry on their business without interruption or demands, other than those imposed on native subjects, so long as they behave themselves peaceably and observe the laws. Treaty between the United States and Nicaragua, June 31, 1867, Art. XL, 15 U. S. Stat. atL. {Tr.,) 59. "^felSiation""' [ "^^^^ ^'^' ^^^^' " ■^"•' ^^ ^^■' ^^''"^ ^^''• Costa Rica, ' July 10, 1853, " XI., 10 Id., {Tr.) 18. Peru, July 36, 1851, " XXXII , 10 Id., {Tr.,) 38. San Salvador, Jan. 2, 1850, " XXVII., 10 Id. {Tr.,) 73. TheTwoSicilies,Oct 1, 1855," 1, 11 7i«., (TV.,) 639. Treaty between Great Britain and Colombia, Feb. 16, 1866, Accounts and Papers, 1867, vol. 74. Salvador, Oct. 34, 1863, Id.', 1863, vol. 75. Nicaragua, Feb. 11, 1860, id., 1860, vol. 68. Treaty between France and Peru, March 9, 1861, 8 De Glereq, 198 But if the conduct of the members of a belligerent nation within the territory of the other belligerent should render them justly suspected, they may be required to leave the country within a certain period, with their families, effects, and property, under a safe conduct to be furnished, or to remove forthwith to such places in the interior as may be designated. Treaty between the United States and Peru, July 36, 1851, Art. XXXII., 10 U. S. Stat, at L., {Tr.,) 28. And see the treaty with Great Britain, Nov. 19, 1794, Art. XXVI., 8 Id., 110. See also treaty between France and Peru, March 9, 1861, 8 De Glereq, 198. By several of the above-mentioned treaties it is also provided that the citizens of either nation residing within the territory of the other at the commencement of war between the two nations, shall be allow^ed, within a certain time, (from six to twelve months,) to dispose of their prop- erty, or to transport it wherever they please, and under a safe conduct from the government to depart, with their money and effects, from the country. And a similar provision was contained in the treaty of Utrecht, be- tween Great Britain and Spain, Art. VI. ; and in the treaty between Great Britain and Russia, of 1766, Art. XII., and of 1797, Art. XII. ; also in the treaty between the United States and the ^E^ublS! \ ^®^- 8. 1867, Art. I., 15 TI. S Stat, at L., {Tr.,) 167. Bolivia, May 18, 1858, " XXVIII., 13 Id., 1003. INTEENATIONAL CODE. 589 The right of foreigners to remove their property from the territory ■of a nation is provided for by Article 336. By the treaty between the United States and Bolivia, May 13, 1858, Art, XXVIII., 13 U. S. Stat, at L. (Tr.,) 1003. Guatemala, Mar. 3, 1849, " XXV., 10 Id., (Tr.,) 1. • San Salvador, Jan. 3, 1850, " XXVII., 10 M., (Tr..) 71, "the right of the members of either nation residing within the territory of the other, at the commencement of the war between the nations, to continue their residence and vocation, is secured only to persons of other •occupation than that of merchant. If it be thought desirable to reserve to a belligerent the right to send ■away passive enemies, the following provision may be sufficient : Mem- bers of one nation, being within the territory of another, who do not, before the expiration of six months after the commencement or declara- ■tion of war between the two, remove therefrom or become naturalized ■therein, and members of one of several belligerent nations, who come within the territory of the hostile nation to reside, with the knowledge ■of the existence of war between such nations, may be treated thereafter and during the war as enemies, active or passive, as the case may be, or be required forthwith to leave the country. Orotius, de Jv/re Belli ae JPaois, III., c. 3., § 7. lu the Franco-Prussian war, the French government first, in effect, forbade Germans capable of military service from leaving France with- ■out special leave, and subsequently commanded all Germans to leave. Safe conducts. 917. A Ibelligerent must give safe conducts to the --agents of international intercourse of neutral powers, who can not conveniently reach their destination with- out passing through its territory or military lines, and to persons sent out of its territory under article 911 or 916. Lieber's Instructions, T 87. See Article 137 and 138 of this Code. Effect of safe conducts. 918. A safe conduct, unless otherwise expressed, is ■subject to the following rules : 1. If giving license to go to a place, license to return is implied, in case that be a part of the purpose for which it was granted : 2. If giving license to leave a place, protection, dur- Jl90 OUTLINES OF AN ing the journej to cross tlie boundaries of the territory or military occupation, is implied ; 3. If granted to a particular person it- is not trans- ferable, and does not include his family, but includes necessary attendants and equipage, according to rank or position ; 4. If granted to a class, such as clergy or military persons, it includes all persons of the class of whatever degree, such as bishops, or commanders ; 5. It extends to all places on land or at sea within the territorial jurisdiction, or the range of hostilities of the belligerent granting it ; and, 6. It is not terminated by the death or removal of the person by whom it was granted. These rules are suggested by Orotius, as quoted by Wild/man Intern. Law, vol. 2, p. 29. Passports. 919. A belligerent may require passports from the members of other nations, whether belligerent or neu- tral, voluntarily seeking to enter or leave its territory or military lines. Interdiction of interior traffic. 920. A belligerent may, within its territorial limits,. or within the district actually occupied by its armies,, prohibit or otherwise restrict the exportation or tran- sit of, or traffic in, anything needed for its own military purposes, or intended to promote the purposes of the- enemy. Other Articles declare the inviolability of private property ; but this Article secures the control necessary for military purposes ; so that all property may be takeai and held on making compensation. Ships of a neutral may as freely as in peace traffic to and fro between. any unblookaded place in a belligerent's territory, and any other such- place, or any place in neutral territory. Goods on board such ships, are free from capture, whatever may be their ownership, unless contrabands or the property of the hostile nation. Treaty between Prance and Peru, March 9, 1861, Art. XX., 8 />& Clvroii, 200. INTEENATIONAL CODE. 591 Intercourse across lines of military occupation. 921. All civil intercourse whatever, between the districts actually occupied by opposing belligerent armies is unlawful/ whether forbidden by proclama- tion or not ;" except such as is expressly authorized by this Code," or by agreement of the belligerent na- tions,' or by the military authority having command of the frontier.' But if the permission be given by one belligerent only, the intercourse is lawful as to him, but not as to the other. Bluntsehli, Droit Intern. Oodifii, % 674 ; Lieber's Instrtictions, "[ 86. ' Hennan v. Gilman, 20 Louisiana Annual Bep., 241 ; see also Graham V. Mervill, 5 Coldwell, (Tennessee,) Bep., 622 ; Bank of Tennessee «. Wood- son, 5 Id., 176. The exception of contracts for ransom, which might be important if the prohibition of intercourse were extended beyond the lines of military occupation, need not be preserved, if the principles of the following Arti- cles are adopted. ' A declaration of hostilities carries with it, according to the present rule, an interdiction of all commercial intercourse with the enemy, on the part of the subjects of the belligerent nation, without express license, Laiorence's Wheaton, Elem. of Intern. Law, pp. 544, 551, § 13 ; Dana's Wheaton, §§ 309, 315 ; Barrick «. Buber, 2 Common Bench Bep. Jf. S., 563 ; Esposito ■». Bowden, 7 Ellis & Blaclcburn's Bep., 763 ; Phillips v. Hatch, 1 Dillon's U. S. Ore. Gt. Bep., 191. Defter, (§§ 122, 123,) suggests, that a declaration of war does not of itself prohibit commercial intercourse, but that such intercourse may go- on, unless specially prohibited, and so far as not so prohibited ; which seems to be an opinion rather than a statement of law ; for precedent and practice, and the opinions of jurists are the other way. Dana's Wheaton, note 158, p. 400. ' See, for instance, Articles 922 and 933. ■• Under the existing rule, forbidding all trading with enemies, the license must be an express license granted or ratified by the highest au- thority in the government. The Hope, 1 Dodson's Bep., 226. It must come ultimately from sovereign authority. Halleck, Intern. Law and Laws of War, 675-690 ; Manning, Law of Nations, § 123 ; Wildman, In- tern. Law, II., 245-266 ; 1 Kent's Commentaries, 163 ; 1 Duer on Insur- ance, 594-619 ; EautefeuUle, tom. 1, p. 19 ; Woolsey's Intern. Law, § 147^ PhiUimore's Intern. Lam, III., 249, 613. * A license to trade with the enemy must be issued by competent au- thority without material misrepresentation, whether intentional or not, on the part of the receiver, and must be used in good faith, strictly ac- cording to its terms. Dana's Wheaton, note 198, p. 504. See also Leevia 592 OUTLINES OP AN e. Cormac, 4 Taunton's Sep., 483, n. ; Freise v. Thompson, 1 Id., 121 ; Van Dyck v. Whitmore, 1 East Hep., 475. By the rules liitherto in force, it is cause of capture for a private ship of one belligerent to sail under a special license or safe conduct of the other, even where the voyage is to a neutral port, and there Is no direct communication with the enemy in the whole course of the voyajre. Thus in the war between Great Britain and the United States, in 1812, the former power being also with its allies, at war in Spain and Portugal, sold licenses to American vessels to trade between America and Spain or Por- tugal, iu order to favor the forwarding thither of supplies for the allied armies. But American vessels trading under such licenses were held lawful prize by American cruisers. The Julia, 8 Orancli's U. 8. Snpr. Gt. Hep., p. 181, and cases following, pp. 203, 444. So, too, the illegality of sailing under an enemy's license is held proper cause for the forfeiture of a neutral vessel. The Alliance, Blatchford's Prise Gases, [U. 8. Dist. Gt.,) p. 362. It is competent for the government to permit commercial intercourse, in so far, at least, that transactions had pursuant to such permission are held valid in the courts of such government. Woods v. Wilder, 43 New York Rep., 164. In the Crimean war, the British government resolved to issue no li- censes, but to allow trade to be carried on with the enemy, even by British subjects, provided it was carried on iu neutral ships. "The example," says Lushington's Na/val Prize La/w, Intro., p. xi., " will in all probability be followed in future." In the war of France and Great Britain against China, the French gov- ernment allowed French and English subjects to (iontinue their commer- cial intercourse with the Chinese, even on Chinese soil, and reciprocally tlie Chinese to continue such intercourse with French and English, even on French or English soil. 8 De Glercq, 353. It has been claimed in England, and as strongly denied in the United States, that a country whichj during peace, confines the trade of its colo- nies to its own subjects, can not, during war, open such trade to a neutral. See Mr. Justice Duhr's essay on this subject, 1 J)uer on Insurance, 698- 785. For the English rule, see The Emmanuel, 1 Rdbinsnn's Adm. Rep., 296 ; The Providentia, 2 Id., 143 ; The Ebenezer, 6 Id., 250 ; The Tliomyris, Edw., 17. In support of the American rule, see Mr. Monroe's letter to Lord MuLGBAVK, Sept. 23, 1805 ; Mr. Madison's letter to Messrs. Mon- roe and PiCKNBT, May 17, 1806 ; and the memorials of the merchants of Baltimore, New York, Boston and Salem, 5 American State Papers, 330- 335, 367-379 ; 2 Parsons on. Contracts, 398. The liability of neutral ships to detention, for carrying on the coast- ing trade of the enemy, " may be taken to have been silently repealed," says Lushington, writing of the English rule, " by the advance of free trade." See also the provisions of Book Fibst in respect to equality of commercial privileges. INTEEIfATIONAL CODE. 593 Pri-oate sMps surprised by war. 922. Subject to articles 863 and 920, concerning con- traband and the prohibition of exports, private ships bearing the national character of a belligerent, being, at the commencement of hostilities or the declaration of war, in ports where they would be subject to detention or confiscation under articles 921 and 929, or lawfully coming there' afterwards, are free from capture and de- tention, and may discharge cargo ; and may take in any cargo already engaged, and depart within thirty days' after the declaration of war or the commencement of hostilities. In case of a ship coming into port after such time the intervening period is not to be computed. This seems a reasonable extension of the rule contended for by Vattel, {Droit des Gens, L. III., c. 4, § 63,) and approved by Ticiss, {Law of Na- tions, Part II., p. 101, § 54, opposing in this the harsh doctrine of Story, J.). Modern usages sanction the principle that the belligerent can neither detain the persons nor the property of those subjects of the enemy who are within his dominions at the time of the declaration, because they •came into them upon the public faith. The above Article is of course so stated as to constitute an exception to the interdiction of intercourse with ports within tlie military occupation. Other ports would, by Article 891, be open during war. ' See Articles 913 and 915. ' In the Franco-Prussian war, 1870-1, the German notification allowed six weeks ; the French, thirty days. On the commencement of the Crimean war, each belligerent allowed the enemy's merchant vessels within its ports, &c., a reasonable time to load and depart ; (six weeks were allowed by Great Britain) and those which had sailed bound to such ports were allowed to enter, discharge, and depart. " This," says Twiss, (Law of Nations, Part II., p. 117,) " marks an epoch in the practice of nations in the exercise of belligerent rights at the immediate outbreak of war." He suggests, however, that the precedent, since it arose in the case of a war commenced for the protec- tion of an ally, does not apply to cases of denial of redress for injuries received, and in which the property of members of one nation is liable to be confiscated for indemnity. Later precedents do not sustain this qualification. Voyages commenced. 923. Subject to articles 863 and 920, concerning contraband and the prohibition of exports, private 594 OUTLINES OF AN ships bearing tlie national character of a belligerent, bound, to a port of a hostile nation, in which they would be subject to confiscation or detention under articles 921 and 929, and leaving the last port before notice of the declaration of war or comnaencement of hostilities, or driven to the hostile port at any time in distress, may freely enter such port, and enjoy the same im- munity as is provided in the last article. Intercourse of active enemies. 924. Active enemies can not make contracts or en- gage in commerce or traffic with enemies, either active or passive, or with the hostile government, except as expressly sanctioned by this Code,' or by both of their respective governments. ' See Chapters LX. and LXIII, and Part IX. The doctrine, that a declaration or recognition of war effects an abso- lute interruption and interdiction of all commercial intercourse and deal- ings between the subjects of the two countries, does not apply to " con- tracts of necessity, founded on a state of war, and engendered by its vio- lence ;" e. g., ransom bills, and bills of exchange drawn by a prisoner in the enemy's country for his own subsistence. MaMeck, Intern. Law and Lam of Wwr, p. 359, § 11. Intercourse subserving the purpose of the war. 925. Enemies, whether active or passive, can not make contracts or engage in commerce or traffic witix each other, or with each other's government, which may directly subserve the purposes of war. The rule prescribed by this Article is suggested as the principal re- striction which war ought to impose upon neutrals and non-combatants. See note to the next Article. Lawful intercourse. 926. Subject to the provisions of this Book, passive enemies may make any contracts, and engage in any commerce or traffic with any persons or nations, except their active enemies, and the hostile nation, which will not directly subserve the purposes of war. The existing rules may be briefly indicated as follows : INTERNATIONAL CODE. 595 The existence of war renders unlawful all commercial intercourse or •eorrespondence of members and domiciled residents of one country with Iho^e of the other. Trading by one enemy with the other subjects the property to confis- cation or to capture and condemnation. Partnerships between enemies are dissolved. No valid contract, express or implied, can arise from any transaction between enemies. Executory contracts which can not be performed with- out commercial intercourse with the enemy are dissolved. 6 TFaBace's JJ. 8. Supr. Ct. Bep., 535, and authorities there cited. The rule forbidding trade between enemies has been applied to the full extent of the old principle, (now generally disavowed,) that, war makes all individual subjects of the nations concerned, the individual en- emies of each other ; and all intercourse between them, therefore, un- less by consent of the sovereign, illegal, except contact in actual combat. The object, policy, and spirit of the rule, says Chief Justice Maeshall, (in the case of The Rapid, 8 Vranch's U. 8. 8upr. Ot. Ue/p., 163,) " is to cut off all communication or actual locomotive intercourse between indi- viduals of the belligerent States. Negotiation or contract has, therefore, no necessary connection with the offense. Intercourse inconsistent with actual hostility, is the offense agaiLst which the operation of the rule is directed." In this case, an American citizen during peace bought English goods in England, and deposited them on Indian Island, a small island belonging to Eugland, near the boundary between Nova Scotia and the United States. On the breaking out of war between Great Britain and the United States, he sent a fishing vessel to bring the goods away. This was held unlawful. An English case. The Madonna Delia Graoia, (4 Robinson's Rep., 195,) has asserted a distinction in the case of property not bought in the way of trade ; but as is pointed out by Mr. Gastle, {Law of Gommerce in Time of Wwr, p. 34,) if we come to qualify this doctrine by the principle laid down by Mr. Justice Willbs, in Exposito v. Bowden, (9 Ellis & Black- burn's Rep., 788,) that mere payment of export and custom house dues is a sufBcient dealing with the enemy to render the contract illegal ; the English rule of law can not be said to be more lenient, or to differ much from that of the American, — that is to say, all intercourse with the ene- my, inconsistent with actual hostility, — is illegal. Stokt, J., in laying down the rule, in the case of The Julia, (8 Granch's U. 8. 8upr. Gt. Sep., 194.) says, that every aid by personal communication or by other inter- course, which shall take off the pressure of the war, or foster the resources or increase the comforts of the public enemy, is strictly inhibited. All intercourse which humanity or necessity does not require, is prohibited. •Chancellor Kent, in Griswold v. Waddingtou, 16 Johnson's {New York) B«jJ.,438, reviewed the continental, the English and the Ajnerican au- thorities, and concluded that the rule of interdiction implied in a State of war " reaches to all interchange, or transfer, or removal of property, to all negotiation of contracts, to all communication, to all locomotive inter- 39 596 OUTLINES OF AK course, to a state of utter occlusion, to any intercourse out one of open hostility, to any meeting but in actual combat." A leading case in England is that of The Hoop, (1 Bobinson's Bep. , 196,) in which Sir Wm. Scott reviewed the authorities, and concluded that intercourse could not subsist on any other footing than that of the direct permission of the State. "There is no such thing," said Sir John NiCHOLL, (the King's Advocate in Potts «. Bell, 8 Durnford & East's Sep. , 548, 554,) " as a war for arms, and a peace for commerce." The rule that war dissolves commercial partnerships was even applied to the case of a firm, two members of which resided in the North, and one in the South, at the breaking out of the civil war in the United States, and the court refused to consider the allegiance or disposition of the latter. Wood v. Wilder, 43 Jifew York Sep., 164. The prohibition extends to the mere carrying of messengers and dis- patches. The Tulip, 3 Washington's V. 8. Cire. Ct. Sep., 181. Dana thus reviews the subject : During the Crimean war, the rule of non- intercourse with the enemy was greatly relaxed by the belliger- ents ; but it was done by orders and proclamations in advance, professedly, relaxing a rule which otherwise the courts of prize would have been obliged to apply. The Order in Council, of 15th April, 1854, permitted British subjects to trade freely at Russian ports not blockaded, in neutral vessels, and in articles not contraband, but not in British vessels. {Lon- don Oaaette, April 18, 1854.) The French orders were to the same effect. The Russian Declaration of 19th April, permitted French and English goods, the property of French or English citizens, to be imported into Russia in neutral vessels. {London Gazette, May 3, 1854.) The French and Russian governments allowed private communications, not contra- band in their nature, to be exchanged between their subjects by telegraph. (Oourier des Mats Unis, 23d July, 1855.) The subject is not touched by the Declaration of Paris of 1856. The Orders in Council must therefore be considered as a special relaxation, adopted from reasons «f policy ap- plicable to that war, and as to which each nation must judge for itself as to any future war. In the debates in Parliament, and in speeches made by public men in the commercial cities, as well as in the memorials of merchants, and in contributions to the press, during and soon after the Crimean war, there was a strong disposition evinced to have all trade left free, and to confine the operations of wars to government property and persons or vessels in public belligerent employment. Dana's Wheaton, Elements of Intern. Law, note 158, p. 400. See the English authorities on National Character, as related to the question of belligerent rights, collected in 3 Wildman's International Law, p. 36-117 ; Castle's Law of Commerce in Time of War, pp. 37-39 ; and the same subject with the American authorities in Lawrence's Wheaton, Elem. of Intern. Lam, pp. 557-580, §§ 16-22 ; Dana's Wheaton, §§ 318-340. Commencement and termination of illegality. 927. The commencement, by an enemy or neutral, nfTEEHTAIIONAL COBE. 597 of a voyage to, or other effort at intercourse with, a belligerent place, with knowledge of the war, and in the execution of a purpose to carry on unlawful traffic or intercourse, is unlawful ; but a voyage or other effort at intercourse commenced without such knowledge or purpose, is not rendered unlawful by the subsequent commencement of hostilities,' unless thereafter per- sisted in. And, when the military occupation or inter- diction, which renders traffic with a place illegal, ceases, the right to capture property engaged in such traffic ceases at the same time.' ' 2 Wildman's Internationai Law, p. 23. * 5 Robinson's Rep., 251. Transfer of ships during war. 928. ^n actual and unconditional transfer of a pri- vate ship of one belligerent to another, or a neutral, if in accordance with article 275, is valid and effectual to change the national character. The rule established by the courts is, that a transfer of property to a neutral by an enemy, in time of war, or in aid of a contemplated war, is illegal, as in violation and fraud of vested belligerent rights. The Ber- non, 1 Uh. Robinson's Rep., 102 ; The Noydt Gedacht, 2 Id., 137, note ; The Minerva, 6 Id., 396, 400, note ; The Rosalie and Betty, 2 Id., 343 ; The Mercy, Blatehford's Prize Gases, {U. 8. Dist. Ot.,) p. 187; The Georgia, 7 WaUaee's U. 8. Supr. Ot. Rep. , 33. The principal rules as to the national character of property, during war, as laid down by the judicial authorities, are as follows : 1. Ships. A ship, freely navigating solely under the flag or pass of any other nation than that of its owner, bears the national character of such other nation. 1 Kent's Commentaries, 85. A foreign flag may be hoisted vinder the regulations of a particular trade. Arnold v. Delcoli, Bee's Adm. (U. 8.) Rep., 5. The presumption of national character arising from these emblems of nationality may be rebutted by the presence of other instruments found in the possession of the captain. Gouget et Merger, III., p. 260, § 45. , As to national character of shipping, see Lawrence's Wheaton, Elem. of Intern. Law, p. 580, § 22; Dana's Wheaton,. % 340; The Julia, 8 Granch's U. 8. Supr. Ot. Rep., 181 ; The Hiram, 8 Id., 404 ; The Aurora, 8 Id. 208. 2. Establishments of trade. The ownership of, or interest in, a com- 598 OUTLINES OF AN mercial establishment, and its branches, bears the national character of the nation within whose limits the chief establishment is situated. Lmo- rence's WTieaton, Elements of Intern. Law, p. 573, § 19 ; The Freund- schaft, 4 Wheaton's V. 8. 8upr. Ot. Sep., 105. The British aud American courts make a further exception in the ■ Adjtjtakt-Gbnbral's Office, No 100. ) Washington, April 24, 1863. The following " Instructions for the G-overnment of Armies of the United States in the Field," prepared by Francis Libber, LL.D., and revised by a Board of Officers, of vehich Major-General B. A. Hitchcock is president, having been approved by the President of the United States, he commands that they be published for the infor mation of all concerned. By order of the Secretary op "Was : E. D. TOWNSEND, Assistant Adjutant-Oeneral. Sectioe" I. Martial law — Military jurisdiction — Military necessity — Retaliation. 1. A place, district, or country occupied by an enemy stands, in consequence of the occupation, under the Martial Law of the invad- ing or occupying army, whether any proclamation declaring Martial Law, or any public warning to the inhabitants, has been issued Qr not. Martial Law is the immediate and direct effect and consequence of occupation or conquest. The presence of a hostile army proclaims its Martial Law. 2. Martial Law does not cease during the hostile occupation, ex- cept by special proclamation, ordered by the commander-in-chief; or by special mention in the treaty of peace concluding the war, when the occupation of a place or territory continues beyond the conclu- sion of peace as one of the conditions of the same. 3. Martial Law in a hostile country consists in the suspension,, by the occupying military authority, of the criminal and civil law, and of the domestic administration and government in the occupied place 634 APPENDIX. or territory, and In the substitution of military rule and force for the same, as well as in the dictation of general laws, as far as military necessity requires this suspension, substitution, or dictation. The commander of the forces may proclaim that the administra- tion of all civil and penal law shall continue, either wholly or in part, as in times of peace, unless otherwise ordered by the military author- ity. 4. Martial Law is simply military authority exercised in accord- ance with the laws and usages of war. Military oppression is not Martial Law ; it is the abuse of the power which that law confers. As Martial Law is executed by military force, it is incumbent upon those who administer it to be strictly guided by the principles of jus- tice, honor, and humanity — virtues adorning a soldier even more than other men, for the very reason that he possesses the power of his arms against the unarmed. 5. Martial Law should be less stringent in places and countries fully occupied and fairly conquered. Much greater severity may be exercised in places or regions where actual hostilities exist, or are ex- pected and must be prepared for. Its most complete sway is allowed — even in the commander's own country — when face to face with the enemy, because of the absolute necessities of the case, and of the para- mount duty to defend the country against invasion. To save the country is paramount to all other considerations. 6. All civil and penal law shall continue to take its usual course in the enemy's places and territories under Martial Law, unless inter- rupted or stopped by order of the occupying military power; but all the functions of the hostile government — legislative, executive, or administrative — whether of a general, provincial, or local character, cease under Martial Law, or continue only with the sanction, or if deemed necessary, the participation of the occupier or invader. 7.' Martial Law extends to property, and to persons, whether they are subjects of the enemy or aliens to that government. 8. Consuls, among American and European nations, are not diplo- matic agents. Nevertheless, their offices and persons will be sub- jected to Martial Law in cases of urgent necessity only : their prop- erty and business are not exempted. Any delinquency they commit against the established military rule may be punished as in the case of any other inhabitant, and such punishment furnishes no reasonable ground for international complaint. '' 9. The functions of Ambassadors, Ministers, or other diplomatic agents, accredited by neutral powers to the hostile government, cease, so far as regards the displaced government ; but the conquer- ing or occupying power usually recognizes them as temporarily ac- credited to itself. 10. Martial Law affects chiefly the police and collection of public APPENDIX. , 635 revenue and taxes, whether imposed by the expelled government or by the invader, and refers mainly to the support and efficiency of the army, its safety, and the safety of its operations. 11. The law of war does not only disclaim all cruelty and bad faith concerning engagements concluded with the enemy during tho war, but also the breaking of stipulations solemnly contracted by the belligerents in time of peace, and avowedly intended to remain in force in case of war between the contracting powers. It disclaims all extortions and other transactions for individual gain ; all acts of private revenge, or connivance at such acts. Offenses to the contrary shall be severely punished, and especially so if committed by officers. 12. Whenever feasible, Martial Law is carried out in cases of in- dividual offenders by Military Courts ; but sentences of death shall be executed only with the approval of the chief executive, provided the urgency of the case does not require a speedier execution, and then only with the approval of the chief commander. 13. Military jurisdiction is of two kinds: first, that which is con- ferred and defined by statute ; second, that which is derived from the common law of war. Military offenses under the statute law must be tried in the manner therein directed ; but military offenses which do not come -within the statute must be tried and punished under the common law of war. The character of the courts which exercise these jurisdictions depends upon the local laws of each particular country. In the armies of the United States the first is exercised by courts- martial ; while cases which do not come within the " Rules and Arti- cles of War," or the jurisdiction conferred by statute on courts-mar- tial, are tried by military commissions. 14. Military necessity, as understood by modern civilized nations, consists in the necessity of those measures which are indispensable for securing the ends of the war, and which are lawful according to the modern law and usages of war. . 15. Military necessity admits of all direct destruction of life or limb of armed enemies, and of other persons whose destruction is in- cidentally unavoidable in the armed contests of the war; it allows of the capturing of every armed enemy, and every enemy of importance to the hostile government, or of peculiar danger to the captor; it al- lows of all destruction of property, and obstruction of the ways and channels of traffic, travel, or communication, and of all withholding of sustenance or means of life from the enemy; of the appropriation of whatever an enemy's country affords necessary for the subsistence and safety of the army, and of such deception as does not involve the breaking of good faith either positively pledged, regarding agree- ments entered into during the war, or supposed by the modern law of 636 APPENDIX. war to exist. Men -who take up arms against one another in public war do not cease on this account to be moral beings, responsible to one another, and to God. 16. Military necessity does not admit of cruelty, that is, the in- fliction of suffering for the sake of suffering or for revenge, nor of maiming or wounding except in fight, nor of torture to extort coji- fessions. It does not admit of the use of poison in any way, nor of the wanton devastation of a district. It admits of deception, but disclaims acts of perfidy ; and, in general, military necessity does not include any act of hostility which makes the return to peace unneces- sarily difiicult. 17. War is not carried on by arms alone. It is lawful to starve tlie hostile belligerent, armed or unarmed, so that it leads to the speedier subjection of the enemy. 18. When the commander of a besieged place expels the non-com- batants, in order to lessen the number of those who consume his stock of provisions, it is lawful, though an extreme measure, to drive them back, so as to hasten on the suiTender. 19. Commanders, whenever admissible, inform the enemy of their intention to bombard a place, so that the non-combatants, and especi- ally the women and children, may be removed before the bombard- ment commences. But it is no infraction of the common law of war to omit thus to inform the enemy. Surprise may be a necessity. 20. Public war is a state of armed hostility between sovereign nations or governments. It is a law and requisite of civilized exist- ence that men live in political, continuous societies, forming orga- nized units, called states or nations, whose constituents bear, enjoy, and suffer, advance and retrograde together, in peace and in war. 21. The citizen or native of a hostile country is thus an enemy, as one of the constituents of the hostile state or nation, and as such is subjected to the hardships of the war. 22. Nevertheless, as civilization has advanced during the last centuries, so has likewise steadily advanced, especially in war on land, the distinction between the private individual belonging to a hostile counti-y and the hostile country itself, with its men in arms. The principle has been more and more acknowledged that the unarmed citizen is to be spared in person, property, and honor as much as thu exigencies of war will admit. 23. Private citizens are no longer murdered, enslaved, or carried off to distant parts, and the inoffensive individual is as little dis- turbed in his private relations as the commander of the hostile troops can afford to grant in the overruling demands of a vigorous war. 24. The almost universal rule in remote times was, and continues to be with barbarous armies, that the private individual of the hos- tile country is destined to suffer every privation of liberty and pro- APPEKDIX. 637 tection, and every disruption of family ties. Protection was, and still is with uncivilized people, the exception. 25. In modem regular wars of the Europeans, and their descend- ants in other portions of the globe, protection of the inoffensive citizen of the hostile country is the rule ; privation and disturbance of private relations are the exceptions. 26. Commanding generals may cause the magistrates and civil officers of the hostile country to take the oath of temporary allegiance or an oath of fidelity to their own victorious government or rulers, and they may expel every one who declines to do so. But whether they do so or' not, the people and their civil officers owe strict obedience to them as long as they hold sway over the district or country, at the peril of their lives. 27. The law of war can no more wholly dispense with retaliation than can the law of nations, of which i+ is a branch. Yet civilized nations aclinowledge retaliation as the sternest feature of war. A reckless enemy often leaves to his opponent no other means of seeming himself against the repetition of barbarous outrage. 28. Retaliation will, therefore, never be resorted to as a measure of mere revenge, but only as a means of protective retribution, and, moreover, cautiously and unavoidably ; that i". to say, retaliation shall ■only be resorted to after careful inquiry into the real occurrence, and the character of the misdeeds that may demand retribution. Unjust or inconsiderate retaliation removes the belligerents farther and farther from the mitigating rules of a regular war, and by rapid steps leads them nearer to the internecine wars of savages. 29. Modern times are distinguished from earlier ages by the exist- ence, at one and the same time, of many nations and great govern- ments related to one another in close intercourse. Peace is their normal condition ; war is the exception. The ulti- mate object of all modem war is a renewed state of peace. The more vigorously wars are pursued, the better it is for humanity. Sharp wars are brief. 30. Ever since the formation and co-existence of modern nations, and ever since wars have become great national wars, war has come to be acknowledged not to be its ovm end, but the means to obtain great ends of state, or to consist in defense against wrong; and no conventional restriction of the modes adopted to injure the enemy is any longer admitted; but the law of war imposes many limitations ■and restrictions on principles of justice, faith, and honor. 638 APPENDIX. Section II. — Public and private property of the- enemy — Protection of persons, and especially women ; of religion, the arts and sciences — PunisJh- ment of crimes against the inhabitants of hostile countries. 31. A victorious army appropriates all public money, seizes all' public movable property until further direction by its government, and sequesters for its own benefit or that of its government all thfr revenues of real property belonging to the hostile government or nation. The title to such real property remains in abeyance during- military occupation, and until the conquest is made complete. 32. A victorious army, by the martial power inherent in the same, may suspend, change, or abolish, as far as the martial power extends,, the relations -which arise from the services due, according to the ex- isting laws of the invaded country, from one citizen, subject, or Dative of the same to another. The commander of the army must leave it to the ultimate treaty of peace to settle the permanency of this change. 33. It is no longer considered lawful — on the contrary, it is helds to be a serious breach of the law of war — to force the subjects of the- enemy into the service of the victorious government, except the latter should proclaim, after a fair and complete conquest of the hostile country or district, that it is resolved to keep the country, district or place permanently as its own, and make it a portion of its own coun- try. 34. As a general rule, the property belonging to churches, to hos- pitals, or other establishments of an exclusively charitable character, to establishments of education, or foundations for the promotion of knowledge, whether public schools, universities, academies of learning or observatories, museums of the fine arts, or of a scientific character — snch property is not to be considered public property in the sense- of paragraph 31 ; but it may be taxed or used when the public service- may require it. 35. Classical works of art, libraries, scientific collections, or precious instruments, such as astronomical telescopes, as well as hos- pitals, must be secured against all avoidable injury, even when they are contained in fortified places whilst besieged or bombarded. 36. If such works of art, libraries, collections, or instruments be-: longing to a hostile nation or government, can be removed without, injury, the ruler of the conquering state or nation may order them to- be seized and removed for the benefit of the said nation. The ulti- mate ownership is to be settled by the ensuing treaty of peace. In no case shall they be sold or given away, if captured by the- APrENDIX. 63& armies of the United States, nor shall they ever be privately appro- priated, or wantonly destroyed or injured. 37. The United States acknowledge and protect, in hostile coun- tries occupied by them, religion and morality ; strictly private prop- erty ; the persons of the inhabitants, especially those of women ;. and the sacredness of domestic relations. Offenses to the contrary shall be rigorously punished. This rule does not interfere with the right of the victorious invader to tax the people or their property, to levy forced loans, to billet soldiers, OP to appropriate property, especially houses, land, boats or ships, and churches, fpr temporary and military uses. 38. Private property, unless forfeited by crimes or by offenses of the owner, can be seized only by way of military necessity, for the support or other benefit of the army of the United States. If the owner has not fled, the commanding officer will cause re- ceipts to be given, which may serve the spoliated owner to obtain in- demnity. 39. The salaries of civil oflBcers of the hostile government who remain in the invaded territory, and continue the work of their office, and can continue it according to the circumstances arising out of the war — such as judges, administrative or police officers, officers of city or com- munal governments — are paid from the public revenue of the invaded territory, until the military government has reason wholly or partially to discontinue it. Salaries or incomes connected with purely honor- ary titles are always stopped. 40. There exists no law or body of authoritative rules of actioa between hostile armies, except that branch of the law of nature and nations which is called the law and usages of war on land. 41. All municipal law of the ground on which the armies stand, or of the countries to which they belong, is silent and of no effect be- tween armies in the field. 42. Slavery, complicating and confounding the ideas of property, (that is of a thing,) and of personality, (that is of humanity,) exists according to municipal law or local law only. The law of nature and nations has never acknowledged it. The digest of the Roman law enacts the early dictum of the pagan jurist, that '• so far as the law of nature is concerned, all men are equal." Fugitives escaping from a country in which they were slaves, villains, or serfs, into another country, have, for centuries past, been held free and acknowledged free by judicial decisions of European countries, even though the municipal law of the country in which the slave had taken refuge acknowledged slavery within its own dominions. 43. Therefore, in a war between the United States and a bel- ligerent which admits of slavery, if a person held in bondage by that belligerent be captured by or come as a fugitive under the protection 640 APPENDIX. of the military forces of the United States, such person is immedi- ately entitled to the rights and privileges of a freeman. To return such person into slavery would amount to enslaving a free person, and neither the United States nor any officer under their authoritj can enslave any human being. Moreover, a person so made free by the law of war is under the shield of the law of nations, and the former owner or State can have, by the law of post-liminy, no belligerent lien or claim of service. 44. All wanton violence committed against persons in the invaded country, all destruction of property not commanded by the authorized officer, all robbery, all pillage or sacking, even after taking a place by main for'ce, all rape, wounding, maiming, or kilUng of such in- habitants, are prohibited under the penalty of death, or such other severe punishment as may seem adequate for the gravity of the of- fense. A soldier, officer or private, in the act of committing such violence, and disobeying a superior ordering him to abstain from it, may be lawfully killed on the spot by such superior. 45. All captures and booty belong, according to the modem law of war, primarily to the government of the captor. Prize money, whether on sea or land, can now only be claimed under local law. 46. Neither officers nor soldiers are allowed to make use of their position or power in the hostile country for private gain, not even for commercial transactions otherwise legitimate. Oflenses to the con- trary committed by commissioned officers will be punished with cashiering or such other punishment as the nature of the offense may require ; if by soldiers, they shall be punished according to the na- ture of the offense. 47. Crimes punishable by all penal codes, such as arson, murder, maiming, assaults, highway robbery, theft, burglary, fraud, forgery, and rape, if committed by an American soldier in a hostile country against its inhabitants, are not only punishable as at home, but in all cases in which death is not inflicted, the severer punishment shall he preferred. Section III. Deserters — Prisoners of war — Hos- tages — Bodty on the battle-field. 48. Deserters from the American army, having entered the ser- vice of the enemy, suffer death if they fall again into the hands of the United States, whether by capture, or being delivered up to the American army ; and if a deserter from the enemy, having taken ser- vice in the army of the United States, is captured by the enemy, and APPENDIX. 641 punished by them with death or otherwise, it is not a breach against the law and usages of war, requiring redress or retaliation. 49. A prisoner of war is a public enemy armed or attached to the hostile army for active aid, who has fallen into the hands of the cap- tor, either fighting or wounded, on the field or in the hospital, by in- dividual surrender or by capitulation. All soldiers, of whatever species of arms; all men who belong to the rising en masse of the hostile country; all those who are attached to the army for its efficiency, and promote directly the object of the war, except such as are hereinafter provided for ; all disabled men or officers on the field or elsewhere, if captured ; all enemies who have thrown away their arms and ask for quarter, are prisoners of war, and as such exposed to the inconveniences as well as entitled to the privi- leges of a prisoner of war. 50. Moreover, citizens who accompany an army for whatever pur- pose, such as sutlers, editors, or reporters of journals, or contractors, if captured, may be made prisoners of war. and be detained as such. The monarch and members of the hostile reigning family, male or female, the chief and chief officers of the hostile government, its diplomatic agents, and all persons who are of particular and singular use and benefit to the hostile army or its government, are, if captured on belligerent ground, and if unprovided with a safe-conduct granted by the captor's government, prisoners of war. 51. If the people of that portion of an invaded country which is not yet occupied by the enemy, or of the whole country, at the ap- proach of a hostile army, rise under a duly authorized levy, en masse to resist the invader, they are now treated as public enemies, and if captured, are prisoners of war. 52. No belligerent has the right to declare that he will treat every captured man in arms of a levy en masse as a brigand or ban- dit. If, however, the people of a country, or any portion of the same, already occupied by an army, rise against it, they are violators of the laws of war, and are not entitled to their protection. 53. The enemy's chaplains, officers of the medical staff, apothe- caries, hospital nurses and servants, if they fall into the hands of the American array, are not prisoners of war, unless the commander has reasons to retain them. In this latter case, or if, at their own desire, they are allowed to remain with their captured companions, they are treated as prisoners of'war, and may be exchanged if the commander sees fit. 54. A hostage is a person accepted as a pledge for the fulfillment of an agreement concluded between belligerents during the war, or in consequence of a war. Hostages are rare in the present age. 642 APPENDIX. 55. If a hostage is accepted, he is treated like a prisoner of war^ according to rank and condition, as circumstances may admit. 56. A prisoner of war is subject to no punishment for being a public enemy, nor is any revenge wreaked upon him by the intentional infliction of any -suflcring, or disgrace, by cruel imprisonment, want of food, by mutilation, death, or any other barbarity. 57. So soon as a man is armed by a sovereign government, and takes the soldier's oath of fidelity, he is a belligerent ; his killing, wounding, or other warlike acts, are no individual crimes or offenses. No belligerent has a right to declare that enemies of a certain class, color, or condition, when properly organized as soldiers, will not be treated by him as public enemies. 58. The law of nations knows of no distinction of color, and if an enemy of the. United States should enslave and sell any captured persons of their army, it would be a case for the severest retaliation, if not redressed upon complaint. The United States can not retaliate by enslavement: therefore death must be the retaliation for this crime against the law of nations. 59. A prisoner of war remains answerable for his crimes com- mitted against the captor's army or people, committed before he was captured, and for which he has not been punished by his own authorities. All prisoners of war are liable to the infliction of retaliatory measures. 60. It is against the usage of modem war to resolve, in hatred and revenge, to give no quarter. No body of troops has the right to declare that it will not give, and therefore will not expect, quarter j but a commander is permitted to direct his troops to give no quarter, in great straits, when his own salvation makes it impossible to cumber himself with prisoners. 61. Troops that give no quarter have no right to kill enemies already disabled on the ground, or prisoners captured by other troops. 62. All troops of the enemy known or discovered to give no quarter in general, or to any portion of the army, receive none. 63. Troops who flght in the uniform of their enemies without any plain, striking, and uniform mark of distinction of their own, can expect no quarter. 64. If American troops capture a train containing uniforms of the enemy, and the commander considers it advisable to distribute them for use among his men, some striking mark or sign must be adopted to distinguish the American soldier from the enemy. 65. The use of the enemy's national standard, flag, or other emblem of nationality, for the purpose of deceiving the enemy i.j APPENDIX. 643 battle, is an act of perfidy by which they lose all claim to the pro- jection of the laws of war. eC. Quarter having been given to an enemy by American troops, under a misapprehension of his true character, he may, never- theless, be ordered to suffer death if, within three days after the battle, it be discovered that he belongs to a corps which gives no quarter. 67. The law of nations allows every sovereign government to make war upon another sovereign state, and, therefore, admits of no rules or laws different from those of regular warfare, regarding the treatment of prisoners of war, although they may belong to the army of a government which the captor may consider as a wanton and un- just assailant. 68. Modern wars are not internecine wars, in whjch the killing of the enemy is the object. The destruction of the enemy in modern war, and, indeed, modern war itself, are means to obtain that object of the belligerent which lies beyond the war. Unnecessary or revengeful destruction of life is not lawful. 69. Outposts, sentinels, or pickets are not to be fired upon, except to drive them in, or when a positive order, special or general, has "been issued to that effect. 70. The use of poison in any manner, be it to poison wells, or food, or arms, is wholly excluded from modern warfare. He that uses it putshimself out of thepale of the law and usages of war. 71. Whoever intentionally inflicts additional wounds on an enemy already wholly disabled, or kills such an enemy, or who orders or en- courages soldiers to do so, shall suffer death, if duly convicted, whether he belongs to the army of the United States, or is an enemy •captured after having committed his misdeed. 72. Money and other valuables on the person of a prisoner, such as watches or jewelry, as well as extra clothing, are regarded by the American army as the private property of the prisoner, and the ap- propriation of such valuables or money is considered dishonorable, and is prohibited. Nevertheless, if large sums are found upon the persons of prison- -ers, or in their possession, they shall be taken from them, and the surplus, after providing for their own support, appropriated for the use of the army, under the direction of the commander, unless other- wise ordered by the government. Kor can prisoners claim, as private property, large sums found and captured in their train, although they had been placed in the private luggage of the prisoners. 73. All ofBcers, when captured, must surrender their side-arms to the captor. They may be restored to the prisoner in marked cases, by tlie commander, to signalize admiration of his distinguished bravery, or approbation of his humane treatment of prisoners before 644 APPENDIX. his capture. The captured officer to whom tl;ey may be restored can not wear them during captivity. 74. A prisoner of war being a public enemy, is the prisoner of the government, and not of the captor. No ransom can be paid by a prisoner of war to his individual captor, or to any officer in com- mand. The government alone releases captives, according to rules prescribed by itself. 75. Prisoners of war are subject to confinement or imprisonment such as may be deemed necessary on account of safety, but they are to be subjected to no other intentional suffering or indignity. The confinement and mode of treating a prisoner may be varied during his captivity according to the demands of safety. 76. Prisoners of war shall be fed upon plain and wholesome food whenever practicable, and treated with humanity. They may be required to work for the benefit of the captor's gov- ernment, according to their rank and condition. 77. A prisoner of war who escapes, may be shot, or otherwise killed in his flight ; but neither death nor any other punishment shall be inflicted upon him simply for his attempt to escape, which the law of war does not consider a crime. Stricter means of security shall be used after an unsuccessful attempt at escape. If, however, a conspiracy is discovered, the purpose of which is a united or general escape, the conspirators may be rigorously punished, even with death ; and capital punishment may also be inflicted upon prisoners of war discovered to have plotted rebellion against the au- thorities of the captors, whether in union with fellow-prisoners or other persons. 78. If prisoners of war, having given no pledge nor made any promise on their honor, forcibly or otherwise escape, and are captured again, in battle, after having rejoined their own army, they shall not be punished for their escape, but shall be treated as simple prisoners of war, although they will be subjected to stricter confinement. 79. Every captured wounded enemy shall be medically treated, according to the ability of the medical staff. 80. Honorable men, when captured, will abstain from giving to the enemy information concerning their own army, and the modern law of war permits no longer the use of any violence against prisoners, in order to extort the desired information, or to punish them for having given false information. Sectiobt IV. — Partisans — Armed enemies not be longing to the hostile army — Scouts — Armed prowlers — War-rebels. 81. Partisans are soldiers armed and wearing the uniform of their army, but belonging to a corps which acts detached from the APPEKDIX. 645 main body for the purpose of making inroads into the territory occupied by the, enemy. If captured, they are entitled to all the privileges of the prisoner of war. 82. Men, or squads of men, who commit hostilities, whether by fighting, or inroads for destruction or plunder, or by raids of any kind, without commission, without being part and portion of the organized hostile army, and without sharing continuously in the war, but who do so with intermitting returns to their homes and avoca- tions, or with the occasional assumption of the semblance of peace- ful pursuits, divesting themselves of the character or appearance of soldiers — such men, or squads of men, are not public enemies, and therefore, if captured, are not entitled to the privileges of prisoners of war, but shall be treated summarily as highway robbers or pirates. 83. Scouts or single soldiers, if disguised in the dress of the country, or in the uniform of the army hostile to their own, employed in obtaining information, if found within or lurking about the lines of the captor, are treated as spies, and suffer death. 84. Armed prowlers, by whatever names they may be called, or persons of the enemy's territory, who steal within the lines of the hostile army, for the purpose of robbing, killing, or of destroying bridges, roads, or canals, or of robbing or destroying the mail, or of cutting the telegraph wire^, are not entitled to the privileges of the prisoner of war. 85. War-rebels are persons within an occupied territory who rise in arms against the occupying or conquering army, or against the authorities established by the same. If captured, they may suffer death, whether they rise singly, .in small or large bands, and whether called upon to do so by their own, but expelled, government or not. They are not prisoners of war; nor are they, if discovered and secured before their conspiracy has matured to an actual rising, or to armed violence. Sectiokt Y .—Safe-conduct— Spies— War-traitors— Captured messengers— Abuse of the flag of truce. 86. All intercourse between the territories occupied by belligerent armies, whether by traffic, by letter, by travel, or in any other way, ceases. This is the general rule, to be observed without special proc- lamation. Exceptions to this rule, whether by safe-conduct, or permission to trade on a small or large scale, or by exchanging mails, or by travel from one territory into the other, can take place only according to agreement approved by the government, or by the highest military authority. 646 APPENDIX. Contraventions of this rule are highly punishable. 87. Ambassadors, and all other diplomatic agents of neutral pow- ers, accredited to the enemy, may receive safe-conducts through the territories occupied by the belligerents, unless there are military rea- sons to the contrary, and unless they may reach the place of their destination conveniently by another route. It implies no interna- tional affront if the safe-conduct is declined. Such passes are usually given by the supreme authority of the state, and not by subordinate ■officers. 88. A spy is a person who secretly, in disguise or under false pre- tense, seeks information with the intention of communicating it to the enemy. The spy is punishable with death by hanging by the neck, ■whether or not he succeed in obtaining the information or in convey- ing it to the enemy. 89. If a citizen of the United States obtains information in a legitimate manner, and betrays it to the enemy, be he a military or ■civil officer, or a private citizen, he shall suflFer death. 90. A traitor under the law of war, or a war-traitor, is a person in a place or district under martial law who, unauthorized by the military commander, gives information of any kind to the enemy, or holds intercourse with him. 91. The war-traitor is always severely punished. If his offense consists in betraying to the enemy anything concerning the condi- tion,, safety, operations or plans of the troops holding or occupying the place or district, his punishment is death. 92. If the citizen or subject of a country or place invaded or conquered gives information to hisown government, from which he is separated by .the hostile army, or to the army of his government, he is a war-traitor, and death is the penalty of his offense. 93. All armies in the fleld stand in need of guides, and impress them if they can not obtain them otherwise. 94. No person having been forced by the enemy to serve as guide is punishable for having done so. 95. If a citizen of a hostile and invaded district voluntarily serves as a guide to the enemy, or offers to do so, he is deemed a war-traitor, and shall suffer death. 96. A citizen serving voluntarily as a guide against his own country commits treason, and will be dealt with according to the law of his country. 97. Guides, when it is clearly proved that they have misled inten- tionally, may be put to death. 98. All unauthorized or secret communication with the enemy is considered treasonable by the law of war. Foreign residents in an invaded or occupied territory, or foreign APPENDIX. 647 Tisitors in the same, can claim no immunity from tLis law. They may communicate with foreign parts, or -with the inhabitants of the hostile country, so tar as the military authority permits, but do fur- ther. Instant expulsion from the occupied territory would be the ■very least punishment for the infraction of this rule. 99. A messenger carrying written dispatches or Terbal messages from one portion of the army, or from a besieged place, to another portion of the same army, or its government, if aimed, and in the uniform of his army, and if captured while doing so, in the territory occupied by the enemy, is treated by the captor as a prisoner of war. If not in uniform, nor a soldier, the circumstances connected with his ■captare must determine the disposition that shall be made of him. 100. A messenger or agent who attempts to steal through the ter- ritory occupied by the enemy, to further, in any manner, the inter- ests of the enemy, if captured, is not entitled to the privileges of the prisoner of war, and may be dealt with according to the circumstan- ces of the case. 101. While deception in war is admitted as a just and necessary means of hostility, and is consistent with honorable warfare, the com- mon law of war allows even capital punishment for clandestine or treacherous attempts to injure an enemy, because they are so danger- ous, and it is so diffictilt to guard against them. 102. The law of war, like the criminal law regarding other offen- ses, makes no difference on account of the difference of sexes, con- cerning the spy, the war-traitor, or the war-rebel. 103. Spies, war-traitOTS, and war-rebels are not exchanged ac- cording to the common law of war. The exchange of such persons would require a special cartel, authorized by the government, or, at a great distance from it, by the chief commander of the army in the field. 104o A successful spy or war-traitor, safely returned to his own army, and afterwards captured as an enemy, is not subject to punish- ment for his acts as a spy or war-traitor, but he may be held in closer custody as a person individually dangerous. Section YI. Exchange of prisoners —Flags of truce — Flags of protection. 105. Exchanges of prisoners take place— number for number- rank for rank — wounded for wounded — with added condition for added condition— such, for instance, as not to serve for a certain period. 106. In exchanging prisoners of war, such numbers of persons of inferior rank may be substituted as an equivalent for one of superior 43 648 APPENDIX. rank as may be agreed upon by cartel, which requires the sanction of the government, or of the commander of the anny of the field. 107. A prisoner of war is in honor bound truly to state to the captor his rank ; and he is not to assume a lower rank than belonga to him, in order to cause a more adrantageous exchange ; nor a higher rank, for the purpose of obtaining better treatment. Offenses to the contrary have been justly punished by the com- manders of released prisoners, and may be good cause for refusing to- release such prisoners. 108. The surplus number of prisoners of war remaining after an exchange has taken place is sometimes released either for the pay- ment of a stipulated sum of money, or in urgent cases, of provision, clothing, or other necessaries. Such arrangement, however, requires the sanction of the highest authority. 109. The exchange of prisoners of war is an act of convenience to both belligerents. If no general cartel has been concluded, it can not be demanded by either of them. No belligerent is obliged to exchange prisoners of war. A cartel is voidable so soon as either party has violated it. 110. No exchange of prisoners shall be made except after com- plete capture, and after aa accurate account of them, and a list of the captured officers, has been taken. 111. The bearer of a flag of truce can not insist upon being ad- mitted. He must always be admitted with great caution. Unneces- sary frequency is carefully to be avoided. 112. If the bearer of a flag of truce offer himself during an en- gagement, he can be admitted as a very rare exception only. It is no breach of good faith to retain such a flag of truce, if admitted during the engagement. Firing is not re'quired to cease on the ap- pearance of a flag of truce in battle. 113. If the bearer of a flag of truce, presenting himself during an engagement, is killed or wounded, it furnishes no ground of com- plaint whatever. 114. If it be discovered, and fairly proved, that a flag of truce has been abused for surreptitiously obtaining military knowledge, the bearer of the flag thus abusing his sacred character is deemed a spy- So sacred is the character of a flag of truce, and so necessary is its sacredness, that while its abuse is an especially heinous offense, great caution is requisite, on the other hand, in convicting the bearer of a flag of truce as a spy. 115. It is customary to designate by certain flags (usually yellow) the hospitals in places which are shelled, so that the besieging enemy may avoid firing on them. The same has been done in APPENDIX. 549 battles, when hospitals are situated within the field of the engage- ment. 116. Honorable belligerents often request that the hospitals with- in the territory of the enemy may be designated, so that they may be spared. An honorable belligerent allows himself to be guided by flags or signals of protection as much as the contingencies and the necessities of the fight will permit. 117. It is justly considered an act of bad faith, of infamy or fiendishness, to deceive the enemy by flags of protection. Such act of bad faith may be good cause, for refusing to respect such flags. 118. The besieging belligerent has sometimes requested the besieged to designate the buildings containing collections of works of art, scientific museums, astronomical observatories, or precious libraries, so that their destruction may be aroided as much as possible. Section NIL— The parole. 119. Prisoners of war may be released from captivity by exchange, and, under certain circumstances, also by parole. 120. The term "parole designates the pledge of individual good faith and honor to do, or to omit doing, certain acts after he who gives his parole shall have been dismissed, wholly or partially, from the power of the captor. 121. The pledge of the parole is always an individual but not a private act. 122. The parole applies chiefly to prisoners of war whom the captor allows to return to their country, or to live in greater freedom within the captor's country or territory on conditions stated in the parole. ' 123. Release of prisoners of war by exchange is the general rule ; release by parole is the exception. 124. Breaking the parole is punished with death when the per- son breaking the parole is captured again. Accurate lists, therefore, of the paroled persons must be kept by the belligerents. 125. When paroles are given and received, there must be an ex- change of two written documents, in which the name and rank of the paroled individuals are accurately and truthfully stated. 126. Commissioned officers only are allowed to give their parole, and they can give it only with the permission of their superior, as long as a superior in rank is within reach. 127. No non-commissioned officer or private can give his parole except through an officer. Individual paroles not given through an officer are not only void, but subject the individual giving them to 650 APPENDIX. the punishment of death as deserters. The only admissible exception is where individuals, properly separated from their commands, have suflfered long confinement -without the possibility of being paroled through an oflBcer. 128. No paroling on the battle-field, no paroling of entire bodies of troops after a battle, and no dismissal of large numbers of prison- ers, with a general declaration that they are paroled, is permitted, or of any value. 129. In capitulations for the surrender of strong places or fortified camps, the commanding officer, in cases of urgent necessity, may agree that the troops under his command shall not fight again during the war, unless exchanged. 130. The usual pledge given in the parole is not to serve during the existing war, unless exchanged. This pledge refers only to the active service in the field, against the paroling belligerent or his allies actively engaged in the same war. These cases of breaking the parole are patent acts, and can be visited with the punishment of death; but the pledge does not refer to internal service, such as recruiting or drilling the recruits, fortify- ing places not besieged, quelling civil commotions, fighting against belligerents unconnected -jvith the paroling belligerents, or to civil or diplomatic service for vehich the paroled officer may be employed. 131. If the government does not approve of the parole, the paroled ofHcer must return into captivity ; and should the enemy re- fuse to receive him, he is free of his parole. 132. A belligerent government may declare, by a general order, wiiether it will allow paroling, and on what conditions it will allow it. Such order is communicated to the enemy. 133. No prisoner of war can be forced by the hostile government to parole himself, and no government is obliged to parole prisoners of war, or to parole all captured officers if it paroles -any. As the pledging of the parole is an individual act, so is paroling, on the other hand, an act of choice on the part of the Belligerent. 134. The commander of an occupying army may require of the civil officers of the enemy, and of its citizens, any pledge he may consider necessary for the safety or security of his army ; and upon their failure to give it, he may arrest, confine, or detain them. Section VIII. — Armistice — Gapitulation. 135. An armistice is the cessation of active hostilities for a period agreed upon between belligerents. It must be agreed upon in writ- ing, and duly ratified by the highest authorities of the contending parties. 136. If an armistice be declared, witliout conditions, it extends APPENDIX. 651 no further than to require a total cessation of hostilities along the front of both belligerents. If conditions be agreed upon, they should be clearly expressed, and must be rigidly adhered to by both parties. If either party violates any express condition, the armistice may be declared null and void by the other. 137. An armistice may be general, and valid for all points and lines of the belligerents ; or special — that is, referring to certain troops or certain localities only. An armistice may be concluded for a definite time ; or for an in- definite time, during which either belligerent may resume hostilities on giving the notice agreed upon to the other. 138. The motives which induce the one or the other belligerent to conclude an armistice, whether it be expected to be preliminary to a treaty of peace, or to prepare duiing the armistice for a more vigorous prosecution of the war, do in no way affect the character of the armistice itself. » 139. An armistice is binding upon the belligerents from the day of the agreed commencement ; but the officers of the armies are re- sponsible from the day only when they receive official information of its existence. 140. Commanding officers have the right to conclude armistices binding on the district over which their command extends ; but such armistice is subject to the ratification of the superior authority, and ceases so soon as it is made known to the enemy that the armistice is not ratified, even if a certain time for the elapsing between giving notice of cessation and the resumption of hostilities should have been stipulated for. 141. It is incumbent upon the contracting parties of an armistice to stipulate what intercourse of persons or traffic between the inhabi- tants of the territories occupied by the hostile armies shall be allowed if any. If nothing is stipulated, the intercourse remains suspended, as dur- ing actual hostilities. 142. An armistice is not a partial or a temporary peace ; it is only the suspension of military operations to the extent agreed upon by the parties. 143. When an armistice is concluded between afortlfied place and the army besieging it, it is agreed by all the authorities on this sub- ject that the besieger must cease all extension, perfection, or ad- vance of his attacking works, as much so as from attacks by main force. But as there is a difference of opinion among martial jurists. Whether the besieged have the right to repair breaches or to erect new works of defense within the place during an armistice, this 6.')2 APPENDIX. point should be determined by express agreement between the par- ties. 144. So soon as a capitulation is signed, the capitulator has no right to demolish, destroy, or injure the works, arms, stores, or am- munition, in his possession, during the time which elapses between the signing and the execution of the capitulation, unless otherwise stipulated in the same. 145. When an armistice is clearly broken by one of the parties, the other party is released from all obligation to observe it. 146. Prisoners, taken in the act of breaking an armistice, must be treated as prisoners of war, the officer alone being responsible who gives the order for such a violation of an armistice. The highest authority of the belligerent aggrieved may demand redress for the infraction of an armistice. 147. Belligerents sometimes conclude an armistice while their plenipotentiaries are met to discuss the conditions of a treaty of peace ; but plenipojtentiaries may meet without a preliminary armistice; in the latter case, the war is carried on without any abatement. Section IX — Assassination. 148. The law of war does not allow proclaiming either an indi- vidual belonging to the hostile army, or a citizen, or a subject of the hostile government, an outlaw, who may be slain without trial by any captoi-, any more than the modern law of peace allows such in- ternational outlawry; on the contrary, it abhors such outrage. The sternest retaliation should follow the murder committed in con- sequence of such proclamation, made by whatever authority. Civil- ized nations look with horror upon offers of rewards for the assassi- nation of enemies, as relapses into barbarism. Section X. — Insurrection — Giml war —Rebellion. 149. Insurrection is the rising of people in arms against their government, or a portion of it, or against one or more of its laws, or against an officer or officers of the government. It may be confined to mere armed resistance, or it may have greater ends in view. 150. Civil war is war between two or more portions of a country 01- state, each contending for the mastery of the whole, and each claiming to be the legitimate government. The term is also some- times applied to war of rebellion, when the rebellious provinces or portions of the state are contiguous to those containing the seat of government. 151. The term rebellion is applied to an insurrection of large ex- tent, and is usually a war between the legitimate government of a country and portions or provinces of the same who seek to throw off their allegiance to it, and set up a government of their own. APPENDIX. 653 152. When hnmanity induces the adoption of the rules of regular \rar toward rebels, whether the adoption is partial or entire, it does in no way whatever imply a partial or complete acknowledgment of -their government, if they have set up one, or of them, as an inde- pendent or sovereign power. Neutrals have no right to malse tlie adoption of the rules of war by the assailed government toward rebels the ground' of their own acknowledgment of the revolted people as an independent power. 153. Treating captured rebels as prisoners of war, exchanging them, concluding of cartels, capitulations, or other warlike agree- ments with them ; addressing officers of a rebel army by the rank they may have in the same; accepting flags of truce; or, on the ■other hand, proclaiming martial law in their territory, or levying war-taxes or forced loans, or doing any other act sanctioned or de- manded by the law and usages of public war between sovereign bel- ligerents, neither proves nor establishes an acknowledgment of the rebellious people, or of the government which they may have erected, as a public or sovereign power. Nor does the adoption of the rules •of war toward rebels imply an engagement with them extending be- jond the limits of these rules. It is victory in the lield that ends the strife, and settles the future relations between the contending parties. 154. Treating, in the field, the rebellious enemy according to the law and usages of war, has never prevented the legitimate govern- ment from trying the leaders of the rebellion or chief rebels for high treason, and from treating them accordingly, unless they are included in a general amnesty. 155. All enemies in regular war are divided into two general ■classes; that is to say, into combatants and non-combatants,, or un- -armed citizens of the hostile government. The military commander of the legitimate government, in a war ■of rebellion, distinguishes between the loyal citizen in the revolted portion of the country and the disloyal citizen. The disloyal citizens may further be classified into those citizens known to sympathize with the rebellion, without positively aiding it, and those who, without taking up arms, give positive aid and comfort to the rebellious enemy, without being bodily forced thereto. 156. Common justice and plain expediency require that the mili- tary commander protect the manifestly loyal citizens, in revolted territories, against the hardships of the war, as much as the common misfortune of all war admits. The commander will throw the burden of the war, as much as lies within his power, on the disloyal citizens of the revolted portion or province, subjecting them to a stricter police than the non-combat- ant enemies have to suffer in regular war; and if he deems it appro- 654 APPENDIX. priate, or if his government demands of him, that every citizen shall^ by an oath of allegiance, or by some other manifest act, declare hi» fidelity to the legitimate government, he may expel, transfer, im- prison, or fine the revolted citizens who refuse to pledge themselves anew, as citizens obedient to the law, and loyal to the govern- ment. Whether it is expedient to do so, and whether reliance can be- placed upon such oaths, the commander or his government have the right, to decide. 157. Armed or unarmed resistance by citizens of the United States against the lawful movements of their troops, is levying wai against the United States, and is therefore treason. PROJECT OF THE BRUSSELS CONFERENCE. PROJECT OF AN INTERNATIONAL DECLA- RATION CONCERNING THE LAWS AND CUSTOMS OF WAR. Of military authority in the territory of the enemy' s country. Art. 1. A territory is considered as" occupied when it is placed act- ually under the authority of the enemy's army. The occupation ex- tends only to the territories where that authority is established and can be exercised. Art. 2. The authority of the legal power being suspended, and having passed actually into the hands of the occupant, the latter shall take all measures in his power with a view to re-establish and assure, as much as possible, order and public life. Art. 3. To this effect he shall maintain the laws which were in force in the country in time of peace, and shall not modify, suspend, or replace them, except in case of necessity. Art. 4r. The functionaries and employees of every order who con- sent on his invitation to continue their functions shall enjoy his pro- tection. They shall not be dismissed or disciplinarily punished unless they fail in the obligations accepted by them, and shall not be delivered up to justice unless they betray them. Art. 5. The army of occupation shall only levy the imposts, du- ties, rights, and tolls already established for the benefit of the state, or their equivalent, if its impossible to collect them, and as much aa possible in the form and according to the existing usage. It shall employ them in defraying the expenses of the administration of the country, in the same proportion as was obliged to be done by the legal government. Art. 6. The army which occupies a territory shall only be able to seize the money, the funds, and securities properly belonging to the state, the depots of arms, means of transport, warehouses, and provisions, and in general all movable property of the state useful in the opera- tions of war. 656 APPENDIX. Railway material, land-telegraphs, steamboats, and other vessels, not comprised in cases ruled by maritime law, as well as the depots of arms, and in general every kind of munition of war, although be- longing to societies or private persons, are equally useful means in the operations of war, and can not be left by the army of occupation at the disposition of the enemy. Railway material, land-telegraphs, as well as steamboats and other vessels above mentioned shall be re- turned and indemnities settled in time of peace. Art, 7. The state in occupation shall only be considered as ad- ministrator and usufructuary of public buildings, lands, - forests, and agricultural establishments belonging to the state of the enemy and found in the country occupied. It shall be obliged to keep safe the funds of these properties, and administer them according to the rules of usnfruct. Art. 8. The goods of corporations, those of establishments con- secrated to religious worship, to charity and instruction, to the arts and -sciences, even belonging to the state, shall be treated as private property. Every seizure, intentional destruction, or degradation of similar establishments, of historical monuments, of works of art or of science, must be prosecuted by the competent authorities. JVTio is to he recognized as a belligerent party — Cornbatants and non-combatants. Art. 9. The laws, rights, and duties of war apply not only to the army, but also to the militia and to the corps of volunteers, unit- ing the following conditions: 1. Having at their head a person responsible for his subordi- nates ; 3. Having a distinctive sign, fixed and recognizable at a dis- tance; 3. Carrying arms openly ; and 4. Complying in their operations with the laws and customs of war. In those countries where the militia constitute the army, or make part of it, the denomination of army shall include such militia. Art. 10. The population of an unoccupied territory, which, on the approach of the enemy, spontaneously takes up arms to combat the invading troops, without having had time to organize itself in conformity with Article 9, shall be (considered as a belligerent, if it respects the laws and customs of war. Art. 11. The armed forces of the belligerent parties may be composed of combatants and non-combatants. In case of capture by the enemy both of them shall enjoy the rights of prisoners of war. APPENDIX. 657 Means of injuring the enemy. Art. 12. The laws of war do not recognize in belligerents an un- limited power as to the choice of means for injuring the enemy. According to this principle are notably interdicted — a. The employment of poison or poisoned arms. ''. The murder by treachery of individuals belonging to the nation or army of the enemy. c. The murder of an enemy, who, having laid down his arms, or having no other means of defense, surrenders at discretion. d. The declaration that quarter will not be given. e. The employment of arms, projectiles, or matters causing super- fluous injuries, as well as the use of projectiles, prohibited by the declaration of St. Petersburg of 1868. /. The abuse of the flag of truce, of the national flag, or of mili- tary insignia, and of the uniform of the enemy, as well as of the dis- tinctive signs of the Geneva convention. g. Every destruction or seizure of an enemy's property which is not imperiously Commanded by the necessity of war. Art. 14. The tricks of war, (ruses de guerre,) and the employ- ment of means necessary to obtain information about the enemy and the country, (excepting the dispositions of Article 36,) are considered as legal. Sieges and bombardments. Art. 15. Fortified places can only be besieged. Towns, agglomer- ations of habitations, or open villages which are not defended, can neither be attacked nor bombarded. Art. 16. But if a city or place of war, collection of habitations, or village is defended, the commandant of the besieging troops, be- fore undertaking the bombardment, except in the case of an attack, shall do all that he can to notify the authorities thereof. Art. 17. In such a case all necessary measures must be taken to spare, as far a^ possible, buildings consecrated to divine worship, or to the arts and sciences, and to charity, hospitals and places for col- lection of the sick and wounded, on condition that they are not em- ployed at the same time for a military purpose. The duty of the besieged is to denote these edifices by special visible signs, which are to be indicated in advance to the besieger. Art. 18. A city taken by assault shall not be given up to pillage by the victorious troops. Spies. Art. 19. No one can be considered as a spy except a person acting 658 APPENDIX. clandestinely, or under false pretenses, collects or seeks to collect in- formation in places occupied by the enemy for the purpose of com- municating it to the adverse party. Art. 20. A spy taken in the act shall be judged and treated according to the laws enforced in the army which has captured him. Art. 21. A spy who rejoins the army to which he belongs, and who is later captured by the enemy, shall be treated as^a prisoner of war, and incur no responsibility for his previous acts. Art. 22. Military men without disguise, who have penetrated into the zone of operations of the hostile army in order to gather informa- tion, shall not be considered as spies. In the same way, military men, (and also civilians openly accom- plisliing their mission.) charged with the transmission of dispatches des- tined for their own or the enemy's army, shall not be considered as spies if captured by the enemy. To this category belong equally, if captured, individuals sent in balloons to transmit dispatches and in general to keep up communica- tion between the different parts of an army or territory. Prisoners of war. I Art. 23. Prisoners of war are legal and disarmed enemies. They are in the power of the enemy's government, but not in that of the individuals or bodies who have captured them. They are to be treated with humanity. Every act of insubordination authorizes in respect to them the necessary measures of rigor. Everything that belongs personally to them, except their arms, remains their property. Art. 24. Prisoners of war can be subjected to confinement (intern- ment) in any city, fortress, camp, or locality whatsoever, with the obligation of not going beyond certain fixed limits, but they can only be imprisoned as a measure of indispensable security. Art. 25. Prisoners of war can be employed on. certain public works which have no direct relation to the operations in the theatre of war, and which are not fatiguing or humiliating to their military rank if they belong to the army, or to their official or social position if they do not form part of it. They can also, by conforming to the regulations to be fixed by the military authority, take part in the labors of private industry; Their pay shall serve to ameliorate their position, or will be ac- counted for to them at the moment of their liberation. In this case the expenses of maintenance can be deducted from this pay. Art. 26. The prisoners of war shall in no way be obliged to take any part whatever in the operations of war. APPENDIX. 669 Art. 27. The government in whose power the prisoners of war are, must pay for their maintenance. The conditions of this maintenance can be established by a mutual understanding between the belligerent parties. In default of this understanding, and as a general principle, prisoners of war shall be treated, as regards food and dress, on the same footing as the troops of the government which shall have captured them. Art. 28. Prisoners of war are submitted to the laws and regula- tions in force in the army in the power of which they are. It is per- mitted, after summons, to make use of arms against the prisoner of war who is escaping. When retaken, he can be subjected to disciplin- ary punishment or to a more severe surveillance. If after having succeeded in escaping he is again made prisoner he is liable to no penalty for his previous flight. Art. 29. Every prisoner of war is obliged to declare, if he is ques- tioned in this respect, his true name and rank, and, in case of his in- fringing this rule, he shall be exposed to a restriction of the ad- vantages accorded to prisoners of war of his category. Art. 30. The exchange of prisoners of war is regulated by a mu- tual understanding with the belligerent parties. Art. 31. Prisoners of war can be put at liberty on parole if the laws of their country [authorize] it; and in such a case they are obliged, on the guarantee of their personal honor, to fulfill scrupulously, both toward their own government and toward that which has made them prisoners, the engagements which they shall have con- tracted. In the same case their own government ought neither to ex- act nor expect of them any service contrary to their given parole. Arf. 32. A prisoner of war can not be forced to accept his liberty on parole ; in the same way, the hostile government is not obliged to accede to the request of a prisoner asking for his freedom on parole. Art. 33. Every prisoner of war liberated on parole and re-taken while bearing arms against the government towards which he has en- gaged his honor, can be deprived of the rights of a prisoner of war, and be brought up before the tribunals. Art. 84. Those persons can also be made prisoners who, while -with the armies, do not directly make part of them, such as cprres- pondents and reporters to newspapers, vivandiferes, sutlers, &c. Nevertheless, they should be provided with an authorization emana- ting from a competent power, and with a certificate of identity. The sidk and wounded. Art. 35. The obligations of belligerents concerning the service of sick and wounded are regulated by the Geneva Convention of the 132d August, 1864, subject to the modifications which maybe made to it. 660 APPENDIX. The military power with regard to private per- sons. Art. 36. The population of an occupied territory can not be forced to take part in military operations against their own coun- try. Art. 37. The population of an occupied territory can not be forced to take an oath of allegiance to the hostile power. Art. 38. The honor and the rights of family, life, and the prop- erty of individuals, as well as their religious convictions and the ex- ercise of their worship, are to be respected. Priyate property can not be confiscated. Art. 39. Pillage is formally forbidden. Contributions and requisitions. Art. 40. As private property must be respected, the enemy can demand of communities or inhabitants nothing more than the contri- butions and services relating to the necessities of war, which are generally recognized in proportion to the resources of the country, and which do not imply for the population the obligation of taking part in the operations of war against their own country. Art. 41. The enemy which raises contributions, either as an equiv- alent of the taxes, or as requisitions to be paid in kind, or as a pun- ishment, shall proceed as much as possible according to the laws which regulate the taxes in force in the occupied territory. The civil authorities of the legal government shall lend their as- sistance to this, if they shall have remained in their functions.'i Contributions can only be imposed on the responsibility of the general-in-chief, or of the superior civil authority established by the enemy in an occupied territory. For every contribution a receipt shall be given to the person who pays it. Art. 42. Requisitions shall be inade only with the authorization of the commandant in the locality occupied. For every requisition an indemnity shall be granted or a receipt delivered. Flags of truce. A.rt. 43. That person is considered as bearing a flag of truce who is authorized by one of the belligerents to enter into negotiations with the other, and who presents himself with a white flag, accompanied by a trumpeter, (bugler or drummer,) or also by a standard-bearer. He shall have the right to inviolability, as well as the trumpeter, bugler or drummer, or the standard-bearer, who accompanies him. APPENDIX. 661 Art. 44. The chief to whom a flag of truce is sent is not obliged to receive it under all circumstances and in all conditions. He is allowed to take all necessary measures to prevent the bearer of a flag of truce from profiting by his sojourn within the enemy's lines, to the prejudice of the latter, and if the bearer of a flag of truce has ren- dered himself culpable of this abuse, he has the right of retaining him temporarily. He can declare in advance that he will not receive flags of truce during a fixed time. Flags of truce which shall present themselves after such a notifi- cation from the side of the party which shall have received it, shall lose the right to inviolability. Art. 45. The bearer of a flag of truce loses his right to inviolabil- ityJf it is proved in a positive and incontrovertible manner that he has profited by his privileged position to provoke or commit an act of treason. Capitulations. Art. 46. The conditions of capitulations are to be debated be- tween the contracting parties. They shall not be contrary to military honor. Once fixed by a convention, they shall be scrupulously observed by both parties. Armistices. Art. 47. An armistice suspends the operations of war by a mutual agreement of the belligerent parties. If its duration is not determined, the belligerent parties can at any time resume operations ; provided, however, that the enemy is notified of it in proper time, conformable to the conditions of the armistice. Art. 48. An armistice can be general or local. The first suspends everywhere the operations of war of the belligerent state ; the latter, only between certain fractions of the belligerent armies, and within fixed lines. Art. 49. The armistice ought to be ofiicial, and without delay notified to the competent authorities and to the troops. Hostilities are suspended immediately after the notification. Art. 50. It depends on the contracting parties to fix in the clauses of the armistice the relations which can exist between the popu- lation. Art, 51. The violation of the armistice by one of the parties gives to the other the right of denouncing it. Art. 52. The violation of the clauses of the armistice by private persons, acting on their own initiative, gives right only to demand ■€62 APPENDIX. the punishment only of those who sue guilty, and an indemnity for the losses received, if any. Belligerents confined and wounded cared for hy neutrals. Art. 53. The neutral state which receives on its territory troops belonging to the belligerent armies shall confne them as far as possible from the theatre of war. It shall keep them in camps, and even imprison them in fortresses or in fit places. It shall decide if the officers can be left free on taking an engage- ment on parole not to quit the neutral territory without authoriza- tion. Art. 54. In default of a special convention, the neutral state shall furnish to the persons so confined, the food, clothing, and help com- manded by humanity. When peace is made, indemnity shall be given for the expenses occasioned by this confinement. Art. 55. The neutral state can authorize the passage over its terri- tory of the wounded or sick belonging to ihe belligerent armies, with the reserve that the trains which bring them shall not transport other soldiers or materials of war. In such a case the neutral state is bound to take the necessary measures of safety and control. Art. 56. The Geneva Convention is also applicable to the sick and wounded on neutral territory. APPLICABILITY OF INTERNATIONAL LAW TO ORIENTAL NATIONS. Paper presented to the Institute of International Law by tnc author of this Code. At the last session of the Institute the following question was, on my motion, referred to a commission: "To what extent, and under what conditions, is the unwritten international law of Europe applic- able to Eastern nations? " During a recent voyage around the world, I was led to observe the anomalous condition, with respect to inter- national law, of all those parts of the globe which are not subject to Christian nations. We are not apt to reflect that what we call the law of nations is after all but ^ collection of rules which Christendom has made or sanctioned for its own people, and that the greater part of the earth is still outside of its . authority. Not that it is wholly silent or unobserved beyond America and Europe; 1 do not mean that. I have seen it appealed to in the correspondence between the governments of China and Japan relating to the affairs of Formosa, and I know that books on international law are studied in both Japan and China, and that the treatise of Mr. Wheaton has been translated into Chinese. Nevertheless the international relations of the governments and people of China and Japan, and not of them only, but of all non- Christian States, are very different from those which prevail among the States and people of Christendom. In Turkey and all its de- pendencies, as well in Europe as in Asia, in all of Africa except Li- beria and the English and Dutch settlements about the Cape, and in all of Asia except Siberia and Hindostan, the rules of international law. if they are recognized at all. are recognized with many excep- tions and modifications. PhiUimore, speaking of Christians in infidel countries, says that "those persons who are entitled to exterritoriai privileges retain the domicil of their own country, with all the incidental rights afiecting their persons or property." (1 Phil. Int. Law, 3d ed., p. 398, citing Hbfftbr.) And, again, "When a person is admitted to exterri 43 664 APPENDIX. torial privileges, the things that belong to him, and the persons that form part of his household or suite, are, generally speaking, sheltered under the same immunities. These privileges exempt them from liability to the civil or crimi- nal tribunals. It is, however, possible that even privileged persons,, by mixing themselves up with the trade or commerce of the country, or by becoming owners of immovable property therein, might of necessity be in some measure amenable to the civil tribunals." ''The privilege does not extend to real or immovable property.. This, like the property of the native, is subject to the municipal law of the land." The United States Consular Eegulations of 1867 contain the fol- lowing in respect to Mohammedan governments: "It may be as- sumed, in regard to these, as a principle of the international law of the world, so far as there is any, that unless there be an express agree- ment to the contrary, no Christian nation admits a full reciprocity of municipal rights, as between itself and any State not Christian, and, therefore, that in the Mohammedan governments above enumerated, Americans possess the rights of exterritoriality which belong to all other Franks." Among the published opinions of the Attorneys- General of the United States is one on the functions of consuls (vol. 7, pp. 348, 349), in which are these passages: " In our relations with nations out of the pale of Christendom we must and shall retain for our citizens and consuls, though we can not concede to theirs, the right of exterritoriality. . . . " When the countries now Mohammedan shall be subjugated to the doctrines of the Roman law, whether by the arms of Eastern or the arts of Western Europe, is of secondary moment to us, provided it be done; and not until then can they be admitted to the same re- ciprocal community of private rights with us which prevails in Chris- tian Europe and in America. Until that happens, Turkey and other Moslem States iu Africa or Asia may, like China and Japan, enter into the sphere of our public law in the relation of government to government, but not in the relation of government to men. That full interchange of international right is admissible only among the nations which have unity of legal thought, in being governed by or constituted out of the once dissevered but since then partially reunited constituents of the Grseco-Roman Empire." In the case of Mahouey v. The United States (10 Wallace's Eo- poris, 62), the Supreme Court of the United States held, that upon Algiers becoming a French province, the functions of an American Consul previously accredited to that country became ipso facto changed. And the Court observed that "the full reciprocity which by the general rule of international law prevails between Christian States in the exercise of jurisdiction over the subjects or citizens of APPENDIX. 665 each other in their respective territories, is not admitted between a Christian State and a Mohammedan State in the same circumstan- ces." In the despatch of a former Minister of the' United States to China, published by the American Q-overnment, this language was used: "The States of Christendom are bound together by treaties which confer mutual rights and prescribe reciprocal obligations; tliey acknowledge the authority of certain maxims and usages received among them by common consent, and called the law of nations, but which, not being fully acknowledged and observed by the Moham- medan and Pagan States, which occupy the greater part of the globe, is, in fact, only the international law of Christendom." In the treaty of 1844 between the United States and China (vol. 8, p. 593, art. 35), it was provided that questions between citizens of the United States in regard to rights, whether of property or person, should be subject to the jurisdiction and regulated by the authorities of their own government. A similar provision is contained in the treaty of 1858 (vol. 13, p. 1033). And the Act of Congress of 1860, passed to carry into effect treaties with China, Japan, Siam, Persia,' and other countries, provides that the jurisdiction of the consuls of the United States in those countries is to be exercised in conformity with the laws of the United States, which were thereby extended over all citizens of the United States, so far as such laws were suita- ble to car'y said treaties into effect, and when defective or unsuitable, the common law, including equity and admiralty, is to be extended in like manner over such citizens in the said countries; "and if de- fects still remain, " to be supplied, and neither the common law, including equity and admiralty, nor the statutes of the United States, furnish appropriate and suitable remedies, the ministers in the said countries respectively shall, by decrees and regulations which shall have the force of law, supply such defects and deficiencies." Notwithstanding these and similar authorities, there are instances in which the local laws of Eastern countries have been applied to dealings between their people and citizens pf the United States. Thus in the case of Consequa v. Fanning (3 Johns.Oh., 587), Chancel- lor Kent decided that the Chinese law, in respect to the interest of money, should be taken as the rule of decision by our Courts. As a general rule, however, it may be considered certain that the law of nations, as understood in Christendom, is not yet extended in its plenitude to the rest of the world. The reason is obvious. That law was first planted in Europe, and has been cultivated only in Europe and America. Its object is the intercourse and community of nations. The object of all people outside of Christendom has been conquest or isolation and non-intercourse. China shut herself up in fancied superiority ; Japan, after admitting foreigners for a hundred 666 APPENDIX. years, excluded all but a few Dutch walled in and guarded at Na- gasaki. Other Asiatic nations and tribes breathed the same spirit and pursued the same policy. In short, while the spirit of Christen- dom was brotherliood, the spirit of the rest of the -world was seclusion or domination. When intercourse began, it was confined and par- tial, limited in place and limited in objects. Indian princes admitted a few trading factories ; China allowed commerce only with the port of Canton, and then under numberless restrictions and impediments. Foreigners thus admitted must of necessity be kept apart, and the way to keep them apart was to make them not only live by them- selves but take care of themselves, which meant that they must gov- ern themselves. To liave as little intercourse with them as possible was the policy of the native governments. On the other hand, it was necessary for the protection of the for- eigners that they should be kept out of the way of the natives as much as was possible. For these two reasons, foreigners formed separate communities governing themselves; the natives, on their part, ab- staining from intrusion so long as there was no attempt to pass be- yond the limits assigned, and the foreigners, on their part, not going beyond them. Each foreign settlement thus became an imperium in imperib, the chief of the settlement being, in most cases, the consul of the country of the settlers. The relations thus established were generally, settled in treaties. There are many such.- The United States alone, during the hundred years of their existence, have had more than thirty, reaching to nearly every organized State and many half-organized tribes ; to Turkey, China, Japan, Persia, Siam, Madagascar, Borneo, Muscat, Lew Chew, Morocco, Algiers, Tripoli, and Tunis. By these it is generally pro- vided that American consuls shall have exclusive jurisdiction over civil disputes between American citizens. The treaties with Turkey, China, Japan, Siam, Morocco, Madagascar and Borneo give the con- suls exclusive jurisdiction over crimes committed by Americans in the territories of the other : the treaties with Turkey, China, Persia, Siam and Madagascar give jurisdiction jointly to American consuls and of&cials of the other state over civil controversies between Americjins and natives ; the treaties with Japan give jurisdiction to the consular courts of claims of the Japanese against Americans, and to the Japanese courts of claims of Americans against Japanese ; while the treaty with Borneo gives the consular cburts exclusive jurisdiction of civil disputes between an American citizen and a Bornean subject. This condition of things gives rise to many perplexing questions, ■ and creates no little embarrassment. I have heard the Khedive of Egypt complain, before the introduction of mixed courts lately ac- complished, that he was unable to invite foreign capital into his country as he would wish, because, in case of the non-fulfillment APPENDIX. 667 of their contracts by foreigners, he had no remedy but to proceed against them in the consular courts. One of the questions growing out of the present condition of tilings arose while I was at Shano-hai. This settlement is built on one of the tributaries of the Yang-tse-Kiano-, and near the mouths of both rivers. The title to the soil, like that of all China, is in the Emperor, leases being given to the settlers. Besides these leases, the Government has made three grants, called respectively the American, English and French concessions, the legal effect of which appears to be to give to the settlers, or rate-payers as they call themselves, the right of local administration, and to the re- spective consuls the right of jurisdiction, to be exercised sometimes alone and sometimes in conjunction with a Chinese mandarin sitting in what are called mixed courts. The question was this: Some Amer- ican residents, citizens of different States, being about to borrow money of an English bank upon a mortgage of their real property in Shanghai, the execution of the mortgage by their wives was required. By what law was the point to be decided — by the law of China, or the law of England, or the laws of the American States? — it so hap- peningthat in some of those States the wife had a right of dower, in others none. If the land had been situated in Russia, at the mouth of the Amour, there could have been no question in the case, for the laws of Russia would alone have been consulted. What in ' principle should make a difierence in this respect between land at the mouth of the Amour and land at the mouth of the Yang-tse-' Kiang? Is it that one is in a Christian and the other in a non-Christ- ian country, or that one is civilized and the other uncivilized? The former distinction is palpable, whether a just one or not; the latter depends upon the meaning of the word civilization. What is civili- zation, and in what respects is that part of Russia superior to China? No doubt the culture and manners of St. Petersburg are superior to those of Pekin ; but is Petropavlosk better in its ofHcial establish- ment or in its administration than Shanghai? But if it were admitted that the administration of justice and the other functions of govern- ment are better performed in Siberia than in China, yet is the differ- ence so great that one is entitled to be pronounced civilized and the other uncivilized? Is not the difference one of degree only? Can it be justly claimed that a nation which has maintained a regularly administered government, over hundreds of millions of human be- ings, for thousands of years; which had invented gunpowder and printing before they were dreamed of in Europe; which had a culti- vated literature and perfected arts, while yet our ancfsters were clothed in skins and lived on uncooked food— can it, I repeat, be justly said of such a nation that it is uncivilized? It must be admitted, I think, that the point of civilization is not the one on which i;he question of international law, in its application to China, should 668 APPENDIX. turn. As to the other reason, that which depends upon the reception of Christianity, it can not be a reason why one nation should be ex- cluded and another admitted into the brotherhood of nations. The chief reason why international law has not been applied to these nations is, I conceive, historical. That law began in Europe, was applied to Europe, fashioned for it, before intercourse with Asiatic and African countries had grown into considerable propor- tious. There is, however, another reason besides the historical one. An envoy of the United States, writing to his government, used this language: " I entered China with the formed general conviction that the United States ought not to concede to any foreign government, under any circumstances, jurisdiction over the life and liberty of a citizen of the United States, unless that foreign State be of our own family of nations — in a word, a Christian State. . . In China I found that Great Britain had stipulated for the absolute exemption of her subjects from the jurisdiction of the Empire. . . 1 deemed it, therefore, my duty to assert a similar exemption on behalf of citi- zens of the United States." It was probably the intention of the envoy to convey the idea that the difference in rights arose not from the difference in religion, but from the difference in laws and social habits, such differences being in part due to other causes than religion. Whatever may be the minor discrepancies, there is a general similarity in the laws of the different American and European States outside of the Ottoman dominions, as every one can see who will take the trouble to compare the codes of the different countries. But the divergence becomes wider when we pass into Asia. There, to mention no other peculiari- ties, the legal position of women and the laws of descent are fun- damentally different. What then should be our conclusion respecting the desirableness and practicability of extending international law in its plenitude over all the States and communities of the world ? There is no diffi- culty in answering this question, so far as it respects all those portions of the laws of nations which concern the relations of nations to each other; that is to say, their essential rights of sovereignty, equality, perpetuity, territory and property, their extra territorial action, their intercourse and compacts with other nations, and their rights of asyr lum and duty of extradition. In respect to those portions of the laws of nations which concern the relations of nations to the persons and property of the members of other nations, that is to say : those which relate to national character, to domicil, to national jurisdiction, to the duties of a nation to foreigners and of foreigners to the nation, the first two are applicable to the Oriental nations, and the last three aie also applicable, with modifications which will be afterwards mentioned, and which may be more or less relaxed, as intercourse in- APPENDIX. 669 •creases and assimilation goes on. Those regulations for mutual con- venience, which form the subjects of so many modern treaties, are applicable to all nations, Western or Eastern, Christian or Pagan, to « greater or less extent, commensurate with the extent of that inter- course, the convenience of which it is the object of such regulations to subserve. And all the provisions for the preservation of peace which are proper for the most advanced nations are none the less .proper for the less advanced. All those regulations of international law which respect the carrying on of war are applicable to all nations alike, the most and the least enlightened. Private international law, that which treats of the relations of the members of a nation to the members of other nations, and under which are grouped all international rules respecting personal capacity and relations, marriage, divorce, contracts, descent and the adminis- tration of justice, is also applicable to Eastern no less than Western nations, except in respect to the administration of justice. We have, then, these points of divergence, the jurisdiction of Oriental nations over travelers and traders from the West, and the administration of justice where such persons are concerned. How shall they be dealt with? So long as the judicial institutions of Oriental States remain as they are, it is impossible to subject Americans and Europeans to their jurisdiction. No one accustomed to the judicial procedure of the West would ever willingly be subject to the procedure of the East. There torture is in constant use, oaths are rarely administered, advocates are unknown, and, in- stead of fixed rules of decision according to law, the caprice of the judge or a vague notion of justice controls the decision. I have my- self seen accused persons brought up for trial before a Chinese judge. Each one was brought in with a chain around his neck, the end of which was fastened to a heavy stone that he was obliged to lift when lie moved; on entering the judge's presence he sank upon his hands ■and feet and remained so during the trial, scarcely daring to look up ; -a crowd of retainers surrounded the judge and took part in the trial, interrupting him, suggesting questions and making statements ; and when the poor creature dared deny the charge, he was instantly put to the torture by men in waiting, who seemed as much part of the court as the judge himself. The punishments inflicted in all Oriental nations are strange and cruel, crucifixion being often among them. It would be revolting to subject our countrymen to such an ordeal and the chance of such a punishment. It seems to me possible to obviate the difficulty by the establish- ment of mixed courts and a special procedure, for the disposition of the cases in which Americans and Europeans are parties. Approaches to such an arrangement have already been made. Mixed courts have 'been some time in existence at Shanghai and have worked well. 670 APPENDIX. The practice there is for a consul to sit with a native judge in cases against natives where a foreigner is interested, and for a native jud"^ to sit with a C!>nsul in cases against a foreigner where a native is in- terested. These also I have witnessed, and I see not the slightest difficulty in their practical operation. The late treaty between the United States and Japan provides that the claims of Japanese against Americans are to be prosecuted in the consular courts, while the claims of Americans against Japanese are to be prosecuted in the courts of Japan. Upon the whole, it appears that we have now arrived at a stage in the intercourse of nations when a rule more- liberal than that heretofore applied may be adopted by Christendom. It is for the interest of civilization and humanity that Eastern nations should be brought as soon as possible within the pale of international law. So lately as June of the present year a step of great importance has been taken, by the establishment in Egypt of mixed courts, con- sisting of a court of appeal, in which there are six European judges and four natives, and of courts of first instance, held by natives and foreigners. My own conclusions, in short, are these : I. — Oriental nations, or, to be more precise, non-Christian nations, should be admitted to all the rights and subjected to all the duties of the nations of the West, or, in other words. Christian nations, as such rights and duties are defined by international law, with the single exception : n. — That until there is a greater assimilation between the nations of the East and the West with respect to judicial institutions, mixed courts and a special procedure should be established for the decision of all cases, public or private, in which Americans and Europeans are: parties. August 2, 1875. DAVID DUDLEY FIELD.. PROPOSITIOK OF PERU. The following circular has been sent by the Minister of Foreigu Affairs of Peru to the Governments of Bolivia, Brazil, Chili, Costa Rica, Colombia, the United States, Ecuador, Guatemala, Honduras, Hayti, Mexico, Nicaragua, Paraguay, Argentine Republic, Santo Do- mingo, Salvador, Uruguay, and Venezuela: — Lima, Dec. 11th, 1875. Sir:— Since the heroic struggle waged by the majority of the Ameri- can States to attain their independence, and notwithstanding the change and derangement following the establishment of a different form of government, they have constantly endeavored to legislate in harmony with the fundamental law adopted in consequence of their freedom, and they have sought to introduce all the reforms demanded by the spread of science and the natural progress of modern society. In new States which were therefore obliged to overcome many difficulties impeding their organization, this important labor has been necessarily as slow and painful as the epoch was critical and difficult in which it has been carried out. And now that their internal efforts have been crowned with suc- cess, they have become convinced that they must think of strengthen- ing the friendly ties which unite them, by assimilating their legisla- tion so far as possible. The spread of international relations, the rapid communication afforded between different countries by the spread of steam and tele- graphy; the facilities which those two elements offer to commerce; the interest of each nation in the progress of the others, since that progress must redound to the benefit of all, and the inconveniences which spring from the differences of laws, have attracted the attention of thinking men on this continent; and the general idea, springing from all these circumstances, and taken up by a society of jurists, has given rise to a project presented by them to my Government, suggest- 672 APPENDIX. ing the advisability of convoking a Congress of Jurists, to discuss and bring into harmony the legislation of the different American States, taking from each one that which may seem most perfect, and coming to a definite agreement especially upon the following points: Firstly. — As a general basis for all cases not specially determined, to procure uniformity of legislation on private matters, so far as the particular circumstances of each country will permit it, and to state in the different codes the points on which such uniformity is impossible, and the manner in which questions shall be decided, ■which may arise in consequence of such want of uniformity; Secondly.- — To concede in each State to citizens of the others the same rights as to its own citizens ; Thirdly.— To simplify as much as possible the formalities of mar- riage between citizens and between citizens and foreigners; Fourthly. — To establish uniformity in the forms of contracts and documents creating obligations. Fifthly. — To fix common rules for the execution of civil judgments and the carrying out of letters rogatory; Sixthly. — To declare in the difiterent codes the cases of extradition, and the modes of effecting them; Seventhly. — To assimilate commercial legislation, particularly in matters of bankruptcy and patents; Mghthly. — To establish common rules for literary property; Ninthly. — To assimilate the coinage, weights, and measures; Tenthly. — To establish a postal convention between all the States. It is impossible to overestimate the importance of this idea, which has occupied the attention of the people of the continent, which originated with them, which receives the support of the greatest in- tellects of America, and from which the most useful results are to be obtained ; and the Government of the undersigned, which sees in the meeting of a Congress of Jurists for the purpose of assimilating as far as possible the legislation of the difl"erent States, the most solid basis on which an American Union can be supported, gladly submits this idea to the high consideration of your Excellency, in the hope that if it should be well received, your Government will appoint representa- tives authorized to enter upon so important a transaction. The Congress might meet in Lima, or in any other place which the majority of the Governments might determine, and it might com- . mence its sessions with such Plenipotentiaries of the invited nations as are present at the time fixed for installation, and to their decisions the other nations might agree either during the sessions or subse- quently. The undersigned, «&c., &c., A. V. DB LA TORRE. INDEX. Accessions, fluvial. See Tbbkitory of Nation. Accessories, who are 625 .Acquisition of territory, right of. See Tbrritobt of Nation. Action for forfeiture brought only in nation imposing it 429 for real property, or injuries thereto, where brought 430 See CouiiTS ;' Judombnt ; JuDiciAi Power ; Limitations ; Military Forces ; Prescriptions. Administration of estates'of foreigners by consuls 177-183 See Foreigners, Rights of Property. of estate of decedent, jurisdiction to grant 457 limit of 458 local nature of power of. . . . 459 principal and ancillary 459 title to personal property acquired through foreign. 459 Administrator, actions by foreign 459 against foreign 461 title to personal property vested in foreign 459 how far ancillary, represents estate 460 duty of ancillary, to transmit assets to principal.. . 460 See Property. Admiralty jurisdiction of a nation, extent of 462 uniform procedure in. 463, 463a See Capture ; Ship ; and Prize. Agents, public. See Consuls ; Public Agents ; Public Ministers. Aliejts. See Enemies ; Foreigners. Allegiance, defined 186 extinguishment of 136 renewal of 137 oath of, to an invader, by inhabitants of a country. ... 481 43 674 INDEX. Page Allegiance suspended by military occupation of territory by enemy 482 of members of conquered nation 604 See ExpATKiATiON ; National Character ; Natu- ralization. A.LLIANCE. See International Code ; Neutral ; Neutrality ; Treaty; War. A.LLIBS, employment of savage, unlawful 448 who are 609 right to judge of justness of cause of war 609 intercourse with enemy by consent of 609 not bound, without consent, by compacts with enemy 610 establishment of prize courts within coantry of 610 Ambassadors. See Public Agents and Public Ministers. Ambulances, defined 510 supplies of, not subjects of capture 511 withdrawal of persons in service of, after capture. . . 511 See Hospitals. Anarchy, effect of, upon continuity of existence of nation 11 Annexation of one nation to another 12' of part of territory of nation 12 Appearance, voluntary, equivalent to personal service of process. . 438 Appurtenances, defined • 197 of land, defined 395 Arbitration, High Tribunal of, how formed 370 to decide international controversies 870 each nation bound to unite in "High Tribunal Of 370 by decisions of High Tribuiaal of. . 370 Armistice, defined 505 authority to make 506 binding upon all persons upon publication 506 language of, wlien ambiguous, how interpreted 507 effect of 507 upon belligerent's powe" o-rer persons and prop- erty , 483 interference to prevent violation of. 508 how terminated 508 not terminated by unauthorized breach 508 hostilities without -uotice upon expiration of 509 See Good Faith. AitMY AND Navy, limit of permanent force employed in 367 Ass.vssiNATiON, and other acts of private revenge, unlawful 497 Asylum, right of 84 obligation of nations to surrender persons 84 to furnish to criminals, paupers, &c., an 85 conspiracy against friendly nation within nation of 86 See Convicts ; Extradition. Average, general. See General Average. INDEX. 675 Page Bankruptcy, validity of discharge in 455 judgment of, witliout transfer of property 457 See JuDiciAii Pkocbbdings. Bblligbkbut, defined 467 autliority limited by actual power 483 may suspend obligations of persons lield to service.. .. 483 rights cease upon termination of war 603 See iNSURasNTS ; Insubrbctiok. Bbllmbrbnt Occupation. See Military Occupation. Bills of ExCHANaB. , 423a-422p Blockade of military ports only to prevent contraband trade 573 Bombardment of defenseless place, unlawful 497 of city or town to be notified to its authorities 499 removal of passive enemies before 499 Booty, public movable property or contraband only may be 538 Boundaries, marks or monuments, injuring 17 See Territory op Nation. Bribery of enemy's officers or agents, unlawful 500 or menace of public agent, a public offense 638 Bridges may be destroyed by belligerent, when 535 Brigands are criminals without protection of laws of war.. 490 Capacity of individuals governed by law of place 378, 380 personal, as to real property , 381 of corporations, governed by law under which they exist.. 381 of person, when courts may determine legal. 439 See Will. Capture, public ships surprised by war free from 539 private property exempt from . 539 rescue of person or property after, when lawful 541 goods on board ship, exempt from 553 of persons and things contraband of war 553 of ships under hostile convoy 558 of ships resisting lawful visitation or search by force .... 559 after visitation and search . 560 proper evidence of probable cause for 560 sending ship to port for adjudication on validity of 561 in charge of prize master and crew. . 564 of ship or cargo incapable of beirg sent to a port 563 detention of persons and papers on board ship, upon 563 of private ship, grounds of suspicion for 565 passive enemies or neutrals on board ship upon 567 of ship, duty of prize officer upon 568 release of persons and things after unlawful 569 indemnity for unlawful ■ • • 569 of an attacking ship as prize by any ship 572 by violation of neutrality, or breach of Code, unlawful. . . . 579 jurisdiction of remedy against wrongdoer upon illegal 579 676 INDEX. Page Captuhe of persons or property in illegal traflBc or intercourse 598 See Goods; Piracy; Pbivatbekhstg ; Prize; Propbrty; Rbcapturb ; Ship. Capitulation of fortified place, injury to works after 50^ Cargo. See Capture ; Contraband of War; Goods; Property. Carriers punishable for torts against immigrants. ; 435 Cartel for exchange of prisoners of war 534 breach of 585 ship, defined 525 pass and flags to be carried by . . 525 free from capture and to be protected, when 525 Certificates, contents of official, for purposes of evidence 448 forging official, a public offense 627 Cession of Territory. See Territory of Nation. Chaplains. See Eeligious Service. Charges d'Apf aires. See Public Agents and Public Ministers. Citizen, defined 3 See Expatriation; Foreigners ; National Charac- ter; Naturalization. CrviL War. See Insurgents ; Insurrection; Intervention; Mediation. Code. See International Code. Coins, what gold a legal tender in any nation 291 silver issued to facilitate minor traasactions 293 a, legal tender to what extent 292 varying from standard weight or fineness 293 standard weights for testing 294 government scrutiny of 294 may be called in by proclamation 295 after recall, cease to be legal tender 295 uncurrent, may be destroyed by any person 295 of base metal not current between nations 296 counterfeiting gold and silver, a public offense 627 See Money. Collision, right of navigation subject to regulations for avoiding. . 25 rules for avoiding 300 losses caused by, how to be borne 210 caused by faults of navigation 211 of ship unlawfully engaged in navigation 211 party in fault upon a 312 ship and freightage due liable for 213 freight and its owners not liable for 212 during compulsory pilotage, owner and ship not liable for 312 beyond jurisdiction of any nation, damages for 463 responsibility for 199 procedure in case of 463, 463'^( Commerce, reciprocal liberty of navigation and. 838 what acts are not to be considered acts of 336 INDEX. 677 Page Commission to take take testimony gg Commission, Joint High, to settle differences between nations 369 of diplomatic officers. See Consuls ; Public Agents ; Public Ministers. Commissioners, agents of international intercourse 37, 77 residence Of, defined 37 imniiinitiea of 77 Complaint of one nation against another 369 full answer to be made to a nation's 369 Conference, annual, of representatives of nations 371 Confiscation. See Capture ; Contraband of War ; Property ; Ship. Congress of Nations. See Confeebncb. Conquest, defined 20 war terminated by complete 603 completed, defined 604 effect of, on civil and political rights 605 on title to public property 605 See Allegiance ; National Character ; Re-Con- quest ; Territory of Nation. Consuls, defined 58 nation and residence, defined 37 classes, rank and power of, fixed by their nation 58 duty of nations to receive 60 exclusion of 60 may be forbidden to engage in business 61 appointment and removal of subordinates 61 must have commission of authority 61 exequatur or permission to act. ... : 61 commission and exequatur not required for temporary. ... 63 must notify local authorities of appointment 63 of receipt of exequatur 63 power as to marine deserters 135, 126 administration of estates 177-183 wrecks 186-188 solemnization of marriages 387 adjustment of average and regulation of repairs. 316 judicial proceedings affecting members of his nation 431 controversies on ship-board ... 431 protection of members of friendly nation 64 power to take and authenticate afBdavits, &c 64 to execute commissions for taking testimony 65 to appear for member of his nation 431 to issue passports 67 to sanction emancipation of minors 67 certified copies of acts of, primary evidence of originals. . . 67 acts presumed to be authorized by instructions 68 678 INDEX. PaKe Consuls, power to seek protection of rights of his nation 68 diplomatic character of 69 powers, how terminated 69 not terminated by change of government 70 right of passage through nation of residence 72 immunities 73 duty as witness in tribunals of nation of residence 74 official books, papers,' &c., not to be seized, &c 75 business books and papers may be examined 75 dwelling and office inviolable 76 general subjection to local law 76 are subject to martial rule 481 CONSPIEACIBS against foreign nation, punishment of 435 Contraband of Wae may be seized and held by belligerent 533 title to property, seized by belligerent 538 kinds of 544 when persons are 545 ships used or destined for use of enemy are. 545 when goods are 548 when documents are 553 contents of mails are not 553 detention and confiscation of 553 freightage of goods, forfeited 555 surrender of contents, discharges ship, when. 563 persons and things, to be brought before prize court 569 trial of persons 580 See Ships. Contract made and performed in same nation, law governing. . . . 411 in different nations, law governing. 412 law governing interpretation of 413 unlawful everywhere, if forbidden by law of the nation. . 415 if violating express provision of the Code 416 if intended to violate law of nation party to Code 416 place of making, defined 41 made by several parties in different places 418 special agreement as to place of consummating- 419 presumed place of making 419 place of making of implied 419 effect of false representations as to place of making. ..... 430 formalities requisite for the making of a 430 of, by several parties in different places 421 effect of war upon executory 582 annulled by war not revived by peace 583 extension of time for performance of 583 no interest, &o., for delaying performance of 583 INDEX. 679 Page :y., right of transit ' ^"'^ relations with other countries 25 1 domestic regulations "^ ' internal regulations '^^^ central office ^''^ arbitration in case, of disagreement 258 conference every three years. . . . :. 259 free entry and departure of mail ships 259 private mails forbidden ^'^'0 dangerous substances ^'^^ transit of closed mails through each nation 259 mail matter not to be detained 260 letters with contraband goods 260 violations of the mails 260 692 iisrDEX. Page Mails, contents of, are not contraband of war 55S See Postal Correspondence ; Postal Sbrtioe. Mabriagk, defined 382 if valid where contracted, valid everywliere 383 if invalid where contracted, invalid everywhere 385' capacity and consent to 385 See Capacity. forms of celebration requisite for 386 public ministers and consuls may solemnize 386 deemed invalid, where the relation would be criminal. . 387 in evasion of home law, not invalid 387 a criminal ofEense 387 personal, marital and parental rights of parties to 387 rights and obligations of parties to a polygamous 387 rights of property as affected by 399, 400 See Matrimonial ; National Character. Martial Rule suspends all laws 477 justified only by necessity 480 exercised in any place possessed by belligerent 480 without proclamation 480 consuls are subject to 481 duty of magistrates and civil officers to be obedient to 481 Matrimonial settlement, effect of 399 domicil, defined 400 not changed by abandonment of one by other 400 law of, governs rights of property 400 property after change of domicil 400 Mediation, offer of, in war between nations allowed 614 between nation and its members, for- bidden 614 Medical Service, persons employed in, can not be separately at- tacked 493 exercise functions within enemy's lines 511 may withdraw from en- emy's lines 511 Member of nation, defined ... 3 of nation not having recognized government. Injury to. . . . 436 Meridian of Greenwich, to be the prime meridian 355 all longitudes to be reckoned from 356 government charts, &o., to be conformed to 356 public vessels to have charts conformed to 356 to keep logs in accordance with 356 INDEX. 693 Page Metric Weights and Meabdebs. See Weights and Measubes. Military, defined 474 law defined 475 tribunals, jurisdiction over foreigners 475 to afford indemnity for excesses , 476 Military Chabaotkb, persona deemed to be impressed with 487 Military Forces, civil remedies for acts of 600 Military Occupation, defined 483 suspends allegiance of members of hostile nation 483 civil and criminal law within limits of 483 enemy's territory held by, until completed conquest 604 See Bblligeebnt ; Intbecoubsb. Military Poets, right of entry of foreign ships into. , 34 defined 573 Military Service, limit of number to be employed in, in time of peace 367 can not be required of foreigners 199, 488 Militia, right of nation to drill its able-bodied men as force of 368 may be called into active service, when 369 Minister's nation, defined 37 public. See Public Agents ; Public Ministers. Money accounts between nations or their members 281 denominations of, to follow law of decimal subdivision 381 standard of to be gold 383 fineness of, prescribed 283 unit of, to be called a dollar 284 value of unit of 384 See Coins. Money Ordbbs. See Postal Money Orders. Month, in contracts and written instruments, how understood. .... 359 See Day ; Timb ; Year. Museums, &c., exempt from acts of hostilities 536 Mutilation of person in punishment of offences, forbidden. : 475 of persons of prisoners of war, unlawful 498 Nation, defined 3 use of term in this Code 3 National Chaeactee of persons... 129 defined • ■ 129 every person has one 139 of two nations can not be had at one time.. 139 rights of membership of a nation without its 129 of legitimate child of a member of the nation 133 of a foreigner 133 of illegitimate child 133 recognized by its father. . 133 694 INDEX. Page National Chabactbk of illegitimate cliild born abroad 134 of chilli of unknown parents 134 persons within a nation presumed to have its 134 marriage, without removal, does not afifect wife's 132 and permanent removal changes wife's 135 gives wife privileges of husband's. 13li does not affect political privileges of wife's 185 of shipping 142 every ship has one, and only one 143 privileges of ships of a nation without its.. . 143 origin of ship's 143 .of ships, how changed 143 registry may be required for enjoyment of.. 143 contents of passport of ships of every 143 passport of ship required for enjoyment of foreign 143 evidence of its 144 reciprocal liberty of commerce to ships of every '. 338 equality as to imposts, privileges, &c, , of ships of every 329 of ship, when changed by transfer during war 597 of members of conquered nation 604 See Allegiance ; Domicil ; Expatriation ; Natukalization. Naturalization, defined 138 not obligatory ] 89 each nation to determine whom it will receive into 139 effect of , 139 record to be sent to minister of former nation. ... 139 absentees can not be received into 139 punishment of crimes committed previous to. ... 140 See Allegiakce ; Expatriation ; National Character. Natigation of the high seas and other waters 24 of rivers communicating with the sea 34 of inland waters not communicating with the sea 24 by menacing armaments within territorial limits of a nation 24 military ports not open to free 24 public or private ships may enter any open port 35 restrictions upon the right of free 25 INDEX. 695 Page Navigation subject to right of approach 35 of visitation 2f5 ships are engaged in fisheries, or foreign or domestic. 197 •when ships are engaged in foreign 198 In domestic 198 rules of, \la/ui of the road at sea} 199 local rules of, bind domestic ships 300 bind foreign ships with notice 200 equality in foreign commerce and 338, 229 exclusive rights of ships of a nation as to domestic 236 belligerent may destroy facilities of, when 535 See Collision ; Commebcb ; Ship. Negotiable Instrument, mode of charging parties to 416 presumption as to place of indorsement of 419 effect of certificate of»protest of 440 See Conteact ; Notaey. Nbdtkal duties, performance of, in case of civil war 469 violation of provisions for protection of 476 justified by orders of superior officer 476 ship, hostilities by use of, is piracy 503 on board ship upon capture 567 belligerent bound to protect private right of 599 who are 613 right to be 613 sovereignty violated by attempt to involve a 612 bound not to assist a belligerent 613 kinds of assistance by a 613 active assistance of a, defined 613 passive assistance of a, defined 614 active duties of a 615 can not purchase conquered territory during war 617 right of hostile ship to enter port of a 630 effect of entrance in distress into port of a 620 supplies to hostile ships, limited 630 protection of hostile ships in port of a.. , 630 priority of departure of hostile ships from port of a 620 prizes not to be sent to ports of a 621 rights and obligations, application of 623 Neutbautt towards a nation and its insurgents 469 breach of, defined 612 violation of, defined 612 effect of a breach of , 612 breach of, not justified by precedent obligation 616 of sick and wounded soldiers. . 617 succor to sick and wounded not a breach of 617 when duties of, take effect 617 liability for negligence in enforcing 618 45 INDEX. Pago Nbutraltt, violations of 619 repelled by force 619 land forces violating, to be disarmed 619 restoration of prizes captured in violation of 621 transactions in violation of, everywhere void 621 breaches and violations of, public offenses 622 redress for injuries in violation of 622 of interoceanic canal 373 Newspapbrs, right to publish or translate extracts from 380 See CoPTRiGHT; Product op the Mind. Notary, certificate of, when sufficient 440 See Negotiable Instrument. Non-Intercoursb. See Intercourse. Notice, actual, defined. . , 624 duty of giving "notice requires actual ; 624 constructive, defined 624 certain persons deemed to have constructive 624 Oath to testimony tafeen for a foreign court 444 of allegiance from inhabitants of a country to an invader. .... 481 Obligations of nations unaffected by diminution of territory or population 10 by change in government or dynasty 11 as affected byannexation to another nation 12 by division of nation 12 defined 410 how created 410 accrues, when 410 arising out of act prohibited by law 431 from performance or omission of acts 423 from ownership or possession of property 433 how affected by state of war or treaty of peace 580 of nation to pay its debt not affected by war 581 anticipation of war does not affect existing 583 extension of time for fulfillment of 583 See Contracts; Damages; Law op Place ; Trbatt. Occupation of territory. See Discovert; Territory op Nation. Outlaw, proclaiming any person, unlawful act of hostility 497 Ownership, defined 393 what may be the subjects of 394 wild animals may be the subject of 394 Parole defined 530 when nation may forbid acceptance of 533 extorted by ill usage not binding. 522 must be reduced to writing 523 the obligation of a 533 violation of. punishable with death 533 INDEX. 697 „ Page Pakty to the record, defined, 437 Passports required of ships ^g contents of ship's I43 effect of ship's '144 defined , jgr. evidence of national character Ig7 issued to members of a nation 166 by its public ministers 47 by its consuls 67 to be required only by nation at war 167 carrying no, or a false, cause for capture of ship 565 of foreigners entering or leaving belligerent's territory. . 590 Patents, protection of 368 Peace, time of, defined 369 limit of standing military forces in tinie of 367 right to build and arm fortresses in time of 368 ships of war in time of 368 how far Book on, is in force in time of war 467 Pee JURY In giving testimony for foreign tribunal 638 Pbrpbtuitt of Nation unaffected by diminution of territory or population 10 by change in form of govern- ment or in dynasty 11 by temporary anarchy 11 by choosing or receiving as its sovereign the sovereign of another nation 11 as affected by annexation of one nation to another 12 by cession or other annexa- tion of part of territory 1 2 by division of the nation. . . 13 Pickets, firing on, when unlawful 498 Pilotage of public armed ship of belligerent, when unlawful 617 Pilots or guides, inhabitants compelled to serve as 504 intentionally misleading, punishable with death.. 504 Piracy, liability to extradition on conviction or charge of 95 injury to member of uncivilized community is 436 hostility by use of false colors or signals is 501, 503 neutral ship is 503 PmATBS, defined 33, 33 harboring, forbidden 33 capture of, authorized 33 restoration of property retaken from 34 salvage for retaking property from 34 subject to criminal jurisdiction of all nations 436 are criminals without protection of laws of war 490 608 IWDEX. Page PiRATicAi Ship, arrest and search of suspected 33 condemnation of, its lading and inmates 38 destruction. of 34 reward for capture of 34 Poison, use of, to vitiate food, drink or atmosphere, unlawful 498 PoSTAli COKRBSPONDBKCB, exchange of correspondence. . . '. 253 classes of correspondence 253 rates of postage on letters. 353 rates on other postal packets 358 registered correspondence 353 prepayment required 254 interior postage 354 certain official correspondence free 255 accounts 255 right of transit 355 relations with other countries 357 domestic regulations 357 internal regulations 358 central oifice 358 arbitration in case of disagreement 358 conference every three years 359 free entry and departure of mail ships. . . 359 private mails forbidden 359 dangerous substances 359 transit of closed mails through each nation 359 mail matter not to be detained 360 letters with contraband goods 260 violations of the mails 360 See Mails. PoSTAi Monet Obdbrs, international, for sums not exceeding $100 365 offices from which, issue 265 language of 266 charges for 266 payable in gold or its equivalent 266 transferable by indorsement 367 money unclaimed upon 267 settlement of accounts for 207 stamps, &c., counterfeiting, a public offense 637 Postal Service unaffected by war between the nations 586 Postal Tariffs to be regulated by metric weight 347 Prescription, title to territory acquired by 33 each belligerent's rules of, suspended by war 600 when civil war suspends rules of 601 Principals, who are 625 Prisoners of War, any belligerent may take 516 what persons may be taken 516 persons not entitled to be treated as 517 messengers entitled to be treated as 517 what personal property of, can not be taken by captor 518 IJSTOEX. 699 Page Prisoners of War, money of, exceeding amount necessary for sup- port 518 surrender of side arms by officers taken 518 manner of treatment of 518,519 expense of maintenance of, by whom borne. . . 518 restraint of gig riglits of 519 may be punished, when 519 giving information concerning their forces. . . . 519 assuming false rank or condition 520 may be required to work for captor, when 530 liable to infliction of retaliatory measures 530 killing not justified by refusal of quarter 500 parole of 530 engagements of, inconsistent with allegiance, void 531 conspiracy of, for an escape, unlawful 523 individual escape by, lawful 533 duty to exchange or allow to be ransomed 524 right of belligerent to retain 524 manner of exchanging 524 ransom for 524 cartel for exchange of 524 breach of cartel for exchange of 535 constraint of, ceases upon termination of war. 603 See Cabtel; HosTAaB; Insuegbnts ; Parole; Sick and Wouudbd. Privateering abolished 489 punishment of 490 Private Pbopeett. See Property. Prize incapable of being sent to port, duty of captor of 562 must be brought in for adjudication 576 possession of, necessary for adjudication 578 disposition of, lawfully captu red 578 restoration of, unlawfully captured 578 title to, not affected till judgment 578 condemnation as, overrides all liens '. . . 579 requisites of judgment condemning 579 uniform rules of procedure in cases of 680 courts established in country of allies 610 not to be sent into neutral port 621 restoration of, captured in violation of neutrality 621 Prize Officer, duty of, upon capture of ship 568 PROD0CT OF the Mind, how far subject of ownership 3To author of, may transfer his property in same 276 rights of second author of 376 700 INDEX. Page PsoDUCT OP THE Mutd, power to prohibit publication of 280 See CoPYRiaHT ; Letters ; Newspapers. Property, capacity of a nation to have 20 national proprietary rights ; eminent domain 21 internal domain 21 title to, acquired by prescription 22 apportionment of, upon division of a nation 13 defined 893 ownership in 398 in what may exist 394 kinds of 394 real or immovable, what 394 personal or movable, what 395 kinds of personal 395 in possession, what 395 of a person declared a lunatic, real 391 personal 391 law governing rights and modes of transfer of real 395 validity and efEect of acts aflecting personal 896 in shipping, law governing title to and transfer of.. . . . . 399 rights of, as afiected by marriage 399 governed by law of matrimonial domicil. . . . 400 transfer of, when void 401 lien of creditors upon personal 402 of intestate, incidents of local burdens upon 406 without heirs, accrues to state 406 limit of judicial power as to private, abroad 428 transfer of, by a debtor, when valid 456 See Bankrtjptct. vested in foreign personal representative, title to 459 application of, to payment of decedent's debts 460 See Administration ; Administrator. wanton injuries to, unlawful acts of hostility 497 belligerent's right to captured, upon termination of war. 603 public, seized and held by belligerent 533 may be appropriated by belligerent, for what purposes 534, 535 personal, engaged in hostilities or illegal intercourse . . . 584 exempt from acts of hostility 536 cannot be sold or removed by invader 537 title to public immovable, seized by belligerent 537 movable, seized by belligerent 538 revenues of public, held in trust for governing country. 588 private, to be respected during war 539 of passive enemies, appropriated by belligerent 542 compensation for, taken for military uses 548 See Territory op Nations. INDEX. 701 PxjBLIO Agents, intercourse to be conducted by what 37 nations forbidden to entertain negotiations except through 87 forbidden to make unoflScial negotiations or com- munications 37 falsely assuming to act as, a public offense 88 number unlimited of a nation's 38 obligation of a nation to receive 38 a nation, may refuse to receive its own members as 39 personal objections to persons sent as 39 on account of rank or status.. . 39, conditions may be imposed upon reception of 40 have all privileges not excluded as condition of re- ception 40 claiming excessive powers 40 accredited to more than one nation '.......... 40 must furnish list of family, ofiBcial and personal. . 41 give notice of any change in family 41 government may refuse to recognize the family of 41 conditional reception of family of 41 upon recall, &c., of, powers, &c., upon whom de- volved 41 may place insignia of office, and flag, over residence 41 are exempt from liability for official acts 42 immunities may be withdrawn upon emergencies from , 43 duty of nations to prevent violations of immunities of 43 interference with a dispatch to or from 43 expulsion of hostile nation's during war 584 of neutral accredited to belligerent nation, rights of 535 bribery or menace of, a public offense 638 redress for violations of Code by 639 PxjBlilC MiNlBTBBS, appointment and reception 44 classes of 44 must be furnished with letters of credence 44 letters of credence, how issued -44 must have written power to act in a, congress. . . 45 authority to negotiate treaty. 45 notify arrival at post of duty 45 recognition of a government by reception of its. . 45 official and personal family of, defined 45 rank of : 46 not affected by relation between courts. . 46 powers of, defined by instructions 47 cannot be required to disclose instructions . 47 702 INDEX. Pag& Public Ministbks, may issue passports to members of their nation 47 authenticate documents for use in their nation 47 official communications of, when to be in writ- ing i 47 powers of, how terminated 47 upon death of, effects to be sealed 48 charge of body for interment. . . 48 recalled by letter of recall, to deliver authenti- cated copy 49 powers of, upon death, &c., of sovereign 49 pending recognition of new govern- ment 49 may terminate mission by notifying with- drawal 50 be dismissed for violations of Code 50 for any personal objection. . 50 reasons for dismissing, to be assigned 50 nations may forbid intercourse with dismissed. . 50 immunities 51 ratification of old letter of credence of 50- right of passage through any nation with fam- ily 51 must have safe conduct for passage through nation at war 51 arrest, &c., of, entering unauthorized a nation at war 52' departing from prescribed line of transit 53 exemption of person and property of 52 formalities requisite for unofficial acts of 53 duration of exemptions of person, property and family of 53 exception as to exemptions of, upon change of government. . . 53 after termination of powers 53 dwelling'-house exempt, from jurisdiction of nation 53 an asylum against violation of personal rights 53 exemptions of the family, official and personal, of 54 of persons prohibited from serving. 54 extent to which privilege may be waived by ... . 54 family cannot waive their privileges 54 may waive privileges of family 54 rwDEX. 703 Page Public Ministbks, property in trade of the family of 55 caunot be deprived of privileges when retiring. 55 domicil is not changed by appointment, &c 55 jurisdiction of a nation over its members, when 55 committing high crimes may be expelled from territory 55 any one may prevent the criminal acts of 56 cannot inflict criminal punishment upon family 56 duty to pay taxes and assessments upon prop- erty , 56 may import certain articles free of duty 56 privileges of bearers of despatches to or from . . 57 reparation for violence to property of 57 Pttblic OffensH. Boundaries, marks or monuments, injuring 17 Bribery or menace of public agent 628 Counterfeiting great seal of a nation ; seal of any court or tribunal ; public securities ; gold and silver coin ; postage and revenue stamps 627 Uttering counterfeit instrument or coin.. ......;. 628 Diplomatic powers, &c., falsely assuming 38 Dispatch to or from a public agent, interference wifh 43 Extradition on conviction or charge of, liabil- ity to 95 False colors, displaying, or making false signals 25 Forging postal money orders ; public acts ; judicial records ; official certificates.' 627 Uttering forged instrument or coin 628 Mails, carrying private, except upon prepaying postage 254 unlawful hindrance of 264 interference with correspondence in 264 violation of secrecy of correspondence in. 264 Member of nation not having recognized govern- ment, injury to 436 Neutrality, breaches and violations of 632 Perjury in giving testimony for foreign tribunal 628 Punishment for 629 Traffic in laborers 164 Telegraphic dispatches, sending false 250 hindering transmission of 250 violating secrecy of 250 Qttakantinb of ships, persons and property in port 289 on frontier 339 for what diseases imposed 339 ships in foul condition may be detained in 339 when ships may put to sea, instead of being placed in 340 704 INDEX. Page Quarantine, limit of 240 regulations may be made by each nation 240 QUABTER when unlawfully refused 497 See Enemies ; Prisoners of Was. Railways between frontier stations an international route 341 equal facilities to members of every nation upon 241 freedom of traflBc upon international. . . ^ 242 revenue service upon international 243 criminals not to be employed upon international 244 goods carried in passenger trains on international 244 transit of merchandise upon, to third nation 245 destroying or injuring international, is piracy 33 may be destroyed by belligerent, when 535 suspension of intercourse across belligerent's lines by. . . 586 jRank, or social condition, privileges of, are local 377 See Bqtjamty of Nations ; Public Ministers. Ransom for prisoners of war 524 Recapture of property of a neutral, effect of 542 belligerent, effect of 542 at sea, salvage for 572 Rbcoonition. See Insurgents. Reconqubst, effect of, upon civil and political rights 484 Records, public, of nations everywhere to receive credit 445 See Judicial Records. Redress for inj uries from uncivilized community 30 for obtrusion of foreign convicts upon a nation 88 notice of, sought by one nation from another 369 Religious Liberty. See Foreigners. Religious Service, persons employed in, cannot be separately at- tacked 493 respected and protected. 514 Reprisal, defined 471 negative, defined 472 positive, defined 472 treated as declaration of war 473 in violation of provisions for preservation of peace 473 Rescue of person or property after capture, when lawful 541 Resistance of lawful visitation or search, effect of 559 Retaliation, when allowed ' 499 mode of, not to be barbarous 500 See Prisoners of War. Reward, offering for death of person, unlawful act of hostility. 497 Rights, essential of nations. See Equality of Nations ; Perpe- tuity OF Nations; Property; Sovereignty of Nations. Rule of the Road. See Law of the Road at Sea ; Navigation. • Safe Conducts may be given by a nation to any person 168 INDEX. 705 Page Safe Condttcts entitle holder to respect and protection 166 for public agents crossing or expelled from territory 589 for foreigners sent out of territory 589 effect of ; . 589 Salutes of ship entering fortified ports, &c 37 Salvage, defined .- 222 when, and to whom, allowed 323 for retaking property from pirates . . 34 not allowed to public ships 35 oflBcers and seamen are entitled to 334 pilots may x;laim ; 234 how forfeited 325 special contract respecting amount of 236 amount awarded for, how fixed 286 how apportioned between several salvors 227 for property recaptured at sea during war 573 Sanity, laws determining person's, are territorial 391 Savages, employment of, against civilized enemy, unlawful 488 Seal. See Counterfeiting ; Forging. Secketasy of legation. See Public Agents ; Public Ministers. Searches on high seas forbidden 37 and seizures of persons and property of foreigners 168 effect of resistance of lawful, by force 559 memorandum of, to be indorsed on ship's papers 561 See Visitation. Seas, defined 463 high, defined 23 See High Seas. Sea Signals, code of, to be devised by international commission. . . 362 to be used by all sea-going ships 363 for all, except confidential commu- nications 363 apparatus and instructions for use of international code of 363 See False Signals ; Signals. Sentinels, firing on, when unlawful 498 Ship, defined IS"* appurtenances of, defined 19 ' engaged in fisheries, or foreign or domestic navigation 197 is engaged in foreign navigation, when 198 in domestic navigation, when 198 to carry flag of nation and evidence of national character 27 documentary evidence of the character of 27 foreign, defined 1^^ domestic, defined ^^^ owner for voyage responsible for repairs and supplies of 198 registry, enrollment and license of 199 value of. how determined 199 706 INDEX. Page Ship, navigation of, rules for 200 public or private, may enter any open port 3i> sailing, aa used in law of road at sea 301 ■ under steam, as used in law of road at sea 201 on high seas in distress, duty of. succor of 209 restrictions on examination of cargo of foreign , 234 on charges imposed on foreign 234 exempt from tonnage dues 235 computation of tonnage dues on foreign 23(> law governing title to and transfers of 399^ pursuit of inmate of foreign, on high seas, for crimes pro- hibited 42& limit of punishment on foreign private.. 485 hostilities by use of neutral, is piracy 503 seized and held by belligerent 588 public, surprised by war free from capture 589 used or destined for use of enemy, is contraband of war 545 contingent destination of voyage presumed hostile 546 neutral and hostile destination of voyage of, defined 546 use of false papers or colors equivalent to hostile destination.. 546 destination of voyage of, conclusive as to goods 547 under hostile convoy liable to capture and confiscation 558 captured, to be sent to port for adjudication 561 when surrender of contraband contents discharges 562 or cargo incapable of being sent to port, duty of captor of . . . . 562 persons captured in public armed 56& without passport or colors 568 and cargo must be released, when 568 right of every, to defend against attack 572 in enemy's ports at commencement of war 593 bound to enemy's port at commencement of war 59S when transfer of, during war, changes national character.. . . . 597 See Captttrb ; Jttrisdiction of Nation ; National Char- acter o/ Shipping'/ Passpoets; Quarantine; Taxation; Visitation. Ships of War, right to build and arm, in time of peace 368 Shipwreck, responsibility for 19!> Sick and Woundbd in private house exempt it from billetings 511 prisoners of war cared for without distinction . 511 immediate exchange of 512 incapacitated for service 512 released on parole 512 voluntary societies for succor of, at sea 513 Signals may be destroyed by belligerent, when 385 See False Siqnals ; Sea Signals. Slavery, beyond the territory of nation, reducing to, or holding in, is piracy 33 no one subject to, except in punishment for crime 377 INDEX. 707 Page Slaves, trade in, declared piracy 33 liability to extradition for trading in 95 foreign, become free by entering free nation 377 SOVBKEIGKTY OF NATION, defined 8 foreign powers not entitled to act within 9 how vested 9 never extends to sovereign or chief officer of another nation 9 See Bquaiity of Nations; Perpetu- ity OF Nation ; Tbrkitoby of Na- tions ; Pbopbety. Spies, defined 503 employment and punishment of 503 See Prisoners of War. Spoliation of Papers, cause for capture of ship 566 defined 567 Standing Army. See Military Service. Starving enemy by cutting off supplies, unlawful 498 Statits. See Capacity ; Foreigners ; Guardian. Stratagems, defined ■ 501 unlawful 501 lawful 503 Subject, defined 3 Succession, defined 403 to movables, law governing 404 to immovables, law governing 405 when not affected by question of legit- imacy 887 rights of, as affected by foreign character of property. . 405 judgments of probate court as to right of, when con- clusive 461 Tariffs, regulations as to 338 Taxation, jurisdiction of a nation to impose 193 of the person of domiciled residents 193 equality of 193 corporations liable to 193 shipping liable to, only by its own nation 194 property of foreigners in transit, how liable to 194 property of public minister liable to 56 debts and evidences of debt not liable to 194 commercial paper, how liable to 195 national obligations in hands of foreigners, not liable to. 195 of commercial travelers 337 on samples carried by commercial travelers... 338 Tklegbaphic Dispatches, classification of 347 of state, defined 347 to be authenticated 847 authentication of private 348 708 INDEX. Page Telbgkaphic Dispatches, language ol 248 in cypher 248 order of transmission of 248 designation of route of 249 government interference or scrutiny of.. 249 transmission of illegal, may be stopped. 249 sending false, a public offense 250 hindering transmission of, a public offense 250 violating secrecy of, a public offense .... 250 national regulations concerning 250 Tblbgkaphs, destroying or injuring oceanic, is piracy.. . .' 33 submarine, within extra-territorialjurisdiction of nation 160 may be landed on shores of any nation 246 all persons may correspond by international 247 government suspension of service of 249 submarine, exempt from acts of hostilities 536 suspension of intercourse across belligerent's Hues by. 586 See Jurisdiction, extra-territorial. Territory of Nation, defined 14 limits of, when bounded by the sea 15 islands, part of, adjacent 15 limits of, when bounded by stream or channel 16 by inland lake, &c. . 16 when wilderness lies between it and another nation . .'. 16 power to determine boundaries 17 when special compact defines boundary of . . 17 injuring marks or monuments indicating boundaries of 17 how lost and how acquired 17 acquired by occupation 18 determined by occupancy of part of island. . 18 by limits of effective control.. . . 18 land formed in sea by accretion part of, nearest 13 boundary of, when modified by land formed on shore '. 18, 19 reclaiming land washed away from 19 ownership of islands formed upon or within boundary of 19 change of course of stream the boundary line of 19 acquired by transfer or cession 19 by conquest 20 rights and obligations unaffected by diminu- tion in population or 11 may be seized a;nd held by belligerent 533 INDEX. 7U9 Page Tebritort of Natiox, belligerent may ravage and lay waste ene- my's, when 536 title to and revenues of, seized by belligerent 537 occupation of enemy's, upon termination of war 608 purchase, by neutral during war,of conquered 617 . See Discovery ; Perpetuity of Nation ; Property. Time, Gregorian style of reckoning, to be employed 357 computation of 635 See DAT ; Month ; Tear. Trademark, what may be appropriated as a 269, 371 registry of foreign 371 declaration of sole right to foreign, to be filed 371 oflBces for registration of foreign 271 right of registration of foreign 372 Traffic in laborers, a public offense 164 belligerent's right of interdiction of interior 590 between districts occupied by opposing belligerents, un- lawful 591 with enemies or hostile government 594 directly subserving the purposes of the war 594 of passive enemies, when lawful 594 with belligerent with knowledge of war, when unlawful. . 596 right of, when military occupation or interdiction ceases.. . 597 capture of persons and property engaged in illegal 598 See Railways. Transfer, defined 401 voluntary defined 401 validity of 401 of personal property, when void 401 protection of creditors against foreign 402 See Property ; Territory of Nation. Treaty, defined 78 any two nations may make 79 consent of nation to a, how communicated 79 nations in state of revolution can make only temporary 79 nations uniting in, to be named in alphabetical order 10 ratification, when necessary 80 when obligatory 80 notice of reasons of refusal to ratify 81 negotiated contrary to minister's powers 81 takes eSect, when 81 Interfering with rights of third party, how far valid 81 provisions of Code modified by special 83 demand of performance of, when necessary 83 merges all preceding communications relating tliereto 83 710 IWDEX. Pago Treaty, extinguishmeut of obligations created by 83 informal compacts other than, may be made 83 ratification of compacts made by unauthorized agents 83 how affected by state of war 681 revival of obligation of, upon termination of war 603 of peace, effect of duress of negotiators of 606 satisfies all existing grievances, i 606 determines results of war 606 rescinded for violation of executory provisions. . . 607 Tkibtjnals. See Coitbts. Tbtjcb, defined ; 505 authority to make 506 binding upon all persons upon publication 506 language of, when ambiguous, how interpreted 507 effect of 507 interference to prevent violation of 508 how terminated 508 not terminated by unauthorized breach 508 hostilities without notice upon expiration of 509 bearers of flag of, respected and protected 509 llNCivrLizBD Community, intercourse with 80 redress for injuries from 80 protection of members of 486 Vessel. See Ship. Visitation, defined 26 when a ship is subject to 26 mode of 26 restricted to verification of ship's nationality. 26 of hospital ships, effect of 513 liability of ships on high seas to 556 ships under neutral convoy, when not subject to 557 duty of ships to submit to 558 mode of , 559 boats, persons a