CORNELL UNIVERSITY LIBRARY Cornell University Library JX2582.L31861 V.1 The law of nations considered as indepen 3 1924 007 477 999 The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924007477999 THE LAW OF NATIONS CONSIDEJRED AS INDEPENDENT POLITICAL COMMUNITIES. THE LAW THE LAW OE NATIONS CONSIDERED AS INDEPENDENT POLITICAL COMMUNITIES. ON THE RIGHT AND DUTIES OP NATIONS IN TIME OF PEACE. BY T RAVERS XWISS, D.C.L. KEGIUS PEOFESSOK OF CIVIL LAW IN THE UNIVERSITY OF OXFORD, AND ONE OF HER MAJESTY'S COUNSEL. OXFORD : AT THE UNIVERSITY PRESS. LONDON : LONGMAN, GREEN, LONGMAN, AND ROBERTS. MDCCCLXI. A.C-¥C>6y UNIVERSITY! LIBRARY P E E F A C E. _LHE object which the Author has had in view in undertaking to treat of the Law of Nations, has been to present to the Student of that branch of Law, which is conversant with the mutual Rights and Duties of Independent Political Communities, a systematic outline of the leading Principles which are at the foun- dation of that Law, and at the same time to il- lustrate the application of those Principles, as occasion served, by reference to the Practice of Nations in the conduct of their mutual Inter- course. For the purpose of such illustration, the Peace of Westphalia has been adopted as a suitable starting point, as that Event ushered in a new Era in the intercourse of Common- wealths, the Treaties of Munster and Osna- bruck being the first practical recognition on the part of the Nations of Europe of the Prin- a 2 iv PKEFACE. ciple of Territorial Sovereignty, and supplying a groundwork for an European Concert to uphold that Principle. The Treatise of Grotius upon the Right of Peace and War, which had appeared in the early part of the Thirty Years' War, had con- tributed in a marked degree to pave the way for the conclusion of those Treaties, by fami- liarising the minds of Statesmen with the con- ception of Territorial Sovereignty; nor was there much difficulty in establishing the con- nection between the Sovereignty of Princes, as a Paramount Right, and the possession of Terri- tory, for that Right was involved in the idea of the Imperial Supremacy, the whole civilised world being taken, for the purposes of that Supremacy, to be the Territory of a Common Sovereign. But the Rights incidental to Sovereignty, regarded in connection with the Absolate Ownership of Territory, were not so easy to demonstrate ; in other words, the Rights of Independence, or, as they have been termed by certain writers on Jurisprudence, the PEEFACE. V External Rights of Sovereignty had received no recognition, as there was no place for them, under that System. They had accordingly both to be reasoned out, and to be applied, and in this consisted the great merit of the labours of Grotius. The proposition, that States, considered as Independent Political Communities, are all Equal in point of Right, however much they may differ in the extent of their Territorial Possessions, may be said to have been first pro- pounded and successfully maintained by the Philosopher of Delft, and this Equality was practically recognised at the Peace of West- phalia, when the States of Central Europe for the first time grouped themselves together after the likeness of a family of Nations. It is to be regretted at a time when much progress is being every where made in practice to establish the ascendency of the Reason over the Will, that certain eminent Writers, who have treated of General Jurisprudence, have vi PEEFACE. adopted the primeval Notion of Law, according to which, Law is exclusively to be regarded as a Rule of conduct imposed by a Sovereign Power upon a Subject Community ; in other words, as the Enactment of the Will of a Superior Power. There is, according to this use of the word Law, no such thing as a Law of Nations, for Indepen- dent Political Communities from their nature, as such, do not acknowledge any common Superior. But a broader view of Law was taken by the Scholastic Jurists, who were the immediate pre- decessors of Grotius. Law according to them was an Ordinance of Reason promulgated for the Common Good ; and if it were necessary to shew from the practice of mankind that this is not a Speculative Notion of Law, we might appeal to the foundation upon which the Ordinances (No/uot) of Solon as distin- guished from the Enactments {QeafioY) of Draco rested : we might further call attention to the place assigned in the system of the Civil Law of Rome to the Senatus-Consulta and the Responsa Prudentum by the side of the Edicta Magistra- tuum and the Placita Principum. It appears, PEEFACE. vii however, to be a well founded distinction be- tween a Rule of Law and a Rule of Morality, that whenever the sanction of a Rule of con- duct is physical, in other words, whenever the Sanction is fear of injury to Person or Pro- perty, the Rule may be properly classed under the head of Law, as distinguished from Morality, the Sanctions of which are only to be disco- vered in the Human Conscience. It may be asked accordingly, what are the Physical Sanctions to the Rules which regulate the Intercourse of Nations ? It was one of the main objects of the system of Grotius to supply an answer to this Question. The Right of War, purum piumque duellum according to the for- mula of the Roman Fecials, furnishes the Prin- ciple. " War," said the great Athenian Orator in the declining days of Athens, " is the mode of proceeding against those who cannot be re- strained by a Judicial Proceeding ; for Judi- cial Proceedings are of force against those who are sensible of their inability to oppose them, but against those who are or think them- viii PEEFACE. selves of equal strength, War is the Proceed- ing ; yet this too, in order that it may be justi- fied, must be carried on with no less scrupulous care than a Judicial Proceeding." Such being the Principle, the Treaties of Munster and Osnabruck furnish us with the Method of ap- plying it, for they laid the foundation of a Balance of Power amongst the Greater States, which it has ever since been the object of an European Concert to maintain. The Treaties of Utrecht in the early part of the last century were a solemn affirmation of the Right of Coalition against any Power that should seek to disturb the European Equilibrium, and the Records of the last Con- gress of Paris bear evidence that the Spirit, which dictated those Treaties, is still the go- verning Spirit of the European family of Na- tions. According, then, to the distinction above suggested, the Rules of Conduct which govern the Intercourse of Nations are not improperly PREFACE." ix considered to form a body of Law strictly speaking, as they have Physical Sanctions of no ordinary character in the consequences of War. The Ruins of Sebastopol bear convincing tes- timony that this is not a fiction of Jurists, but a stern reality of International Life. With regard to the arrangement of the pre- sent Work, the First Part comprises the Rights and Duties of Nations in time of Peace : the Second Part will embrace the Rights and Du- ties of Nations in time of War. Oxford, June i3, i86i. PART I. OF THE RIGHTS AND DUTIES OF NATIONS IN TIME OF PEACE. CONTENTS. CHAPTER I. NATIONS AS SUBJECTS 0? LAW. § I . Nations Independent Political Communities i a. International Jurisprudence a 3. Element of Roman Law 3 4. Definition of a State adopted by Grotius 3 5. PuffendorFs Definition of a State 4 6. Christian de Wolff 5 7. VatteFs Definition of a State 5 8. Growth of Natural Society 6 9. Natural Society of Nations 8 10. Nationalisation and Denationalisation of States 9 11. Hobbes^ view of Political Society 10 1 3. Equality of Nations 11 13. Perfect and Imperfect Rights of Nations 13 14. Rights incidental to the Right of Self Preservation 13 15. ObKgations corresponding to Rights 13 16. The Good Ofiices of Nations discretional 13 17. Right of Coalition 14 CHAPTER n. INCIDENTS- AND MODIFICATIONS OF INTERNATIONAL LIFE. 18. Continuity of International Life ] 6 19. Determination of International Life 18 xiv CONTENTS. §30. International Recognition of Independence 19 31. International Life not determined by Political Changes within a State. Personal Treaties 30 33. Real Treaties 31 33. Sovereignty distinct from Independence 33 34. Semi-Sovereign States a Solecism 24 35- Conventional Independence of States 35 36. Independent States under Protection 37 37. The Principality of Monaco 28 38. The Lordship of Kniphausen 30 39. The United States of the Ionian Islands 33 30. Neutrality of a Protected Independent State ^^ 31. The Free City of Cracow 36 33. Its Internal Constitution a subject of Treaty 37 ^^. Cracow and the Ionian Islands 40 34. The extinct Republic of Poglizza 41 ^^. The RepubUe of Andorre 43 ^6. The Republic of San Marino 44 CHAPTER III. NATIONAL STATE-SYSTEMS OF CHRISTENDOM. 37 . Single or United States 4^5 38. Personal Union of Independent States 46 39. Real Union of Independent States 47 40. Federal Union of Norway and Sweden 49 41 . Diversity of Federal Unions C2 43. The United States of America cq 43. The Constitution of 1787 _54 44. The Articles of Confederation of 1778 cc 45. The Confederate States of America of 1861 ^6 46. The Argentine Confederation ^8 CONTENTS. XV Page §47. A Single State decentralised 59 48. The Constitution of the Argentine State 60 49. The Argentine Provinces 61 50. The Swiss Confederation of 1648 61 51. The Helvetic Confederation of 1 815 6a 52. The League of Sarnen of 1 83a 64 53. The Swiss Confederation of 1 848 65 54. Analogy between the Swiss Confederation and the United States of America 67 ^^. Origin of the Germanic Confederation 68 56. Federal Act of 1815 70 Sy. Final Act of 1820 71 58. The Ordinary Assembly of the Diet 75 59. The Plenum or Full Chapter of the Diet 77 60. Permanent Character of the Germanic Confederation 80 CHAPTER IV. THE OTTOMAN EMPIEB. 61. The International Relations of the Mahommedan World 82 62. Admission of the Porte into the Fellowship of Eu- ropean Nations. Treaty of Paris^ 30 March 1856. Declaration of Maritime Law 84 6^. Constitution of the Ottoman Empire — Christian and Mahommedan dependencies — Exceptional position of Tunis 86 64. The States on the Barbary Coast — Treaties with Algiers 88 6^. Early Treaties with the Sublime Porte — The Barbary States in practice hereditary Regencies 90 66. Paschalik of Egypt— Treaty of London, 1 5 July 1840 92 xvi CONTENTS. § 67. Principality of Servia — Treaties of Sistova, Bu- charest, Adrianople, Ackermann 94 68. The Principalities of Walachia and Moldavia — ^Treaty of Carlowitz 97 69 . Treaties of Kutschauk-Kainardji^Bucharest, Adrian- ople, St. Petersburg 100 70. Convention of Balta-Liman 102 71. Treaty of Paris 104 73. The Danube and the Dardanelles — The Neutrali- sation of the Black Sea 105 73. Principality of Montenegro — Treaties of Carlo- witz, Passarovitz, and Sistova — Congress of Paris 106 CHAPTER V. SOURCES OF THE LAW OF NATIONS. 74. Natural and Positive Law no 75. Natural Law of Nations iii '^6. Positive or Voluntary Law of Nations 112 7 7 . Vattel's Subdivision of Positive Law 113 78. Customary and Conventional Law 115 79. Identity of the Law of Nations with the Law of Nature according to Hobbes and Puffendorf ... 116 80. The Law of Nations a Special Science according to De WoliF and Vattel 117 8 1 . Essential Difference between Nations and Indivi- dual Human Beings n8 83. The Law of Natm-e 118 83. Identical Natural Law of Rude and Civilised Na- tions 119 84. Growth of the Positive Law of Nations 1 30 CONTENTS. xvii Page §85. Study of the Law of Nations in England 122 86. Courts of the Law of Nations 123 87. Customary or Consuetudinary Law of Nations ... 124 88. Relations with Non-Christian Powers exceptional 126 89. The Diplomatic Science 128 90. Conventional Law of Nations 129 9 1 . Views of Martens and others contrasted with those of Schmalz and others 130 92. Ortolan's View of the Effect of Conventions on General Law 132 93. Wheaton's Earlier and Later Views 133 94. Illustration as to Contraband of War 1 34 95. Preambles and Recitals of a Declaratory Character 138 96. Objections to the Idea of any Law properly speak- ing between Nations 139 97. International Morality distinct from the Law of Nations 140 CHAPTER VI. RIGHT OF SELF-PRESERVATION. 98. Absolute and Conditional Rights of Nations 143 99. Right of Self-Defence 144 100. Treaty-Limitations of such Right 145 loi. Right of Self- Aggrandisement 146 103. Right of anticipating Attack 148 103. Right of Confederation 150 104. The Balance of Power 152 PART 1. xviii CONTENTS. CHAPTER VII. RIGHT OF ACQUISITION. Page § 105. Establishment of a Nation in a Country 156 106. Juridical Notion of Possession i57 107. Possession as founding a Eight of Property 158 108. Primitive and Derivative Acquisition 1 60 109. Settlement of a Nation 161 1 10. Right of Occupation 161 1 1 1 . Right of Discovery 162 113. Notification of Discovery 163 113. Acts confirmatory of Occupation 165 114. Discovery followed by Settlement constitutes a Perfect Title 166 1 15. Extent of Right of Discovery 168 116. Extent of Right of Occupation 169 117. Principles of Law advanced by the United States of America 170 118. Discovery of the Mouth of a River 172 119. Conflict with acknowledged Law 174 1 20. Right of Settlement .' 175 121. Usucaption or Prescription 177 122. Territory of the Hudson's Bay Company 178 1 23. Right of Contiguity 179 1 24. Arcifinious States 1 80 125. Discovery of the New World 182 126. Settlements in the New "World 183 127. Possessory Right of Native Indians 1 85 128. Agriculture in relation to pasture 1 85 129. The Indian Title 186 1 30. Derivative Acquisition 189 131. Title by Cession 101 CONTENTS. xix CHAPTER VIII. RIGHTS OP POSSESSION. . Page *l^6. The Territory of a Nation 193 137. Extension of Territory 194 138. Empire a primary Territorial Right 195 139. Empire distinct from Domain 195 140. Empire over things which cannot be appropriated. 196 141. Empire over Territorial Rivers 197 143. Modifications of Right of Empire by Compact 200 143. Empire over Frontier Rivers 20 1 144. Treaty stipulations as to use of Frontier Rivers .... 202 145. Conventional Law of Europe as to the Great Rivers 205 146. The Thalweg or Midchannel of a River the boun- dary of Conterminous States 206 147. Right of Alluvion 209 148. Prescriptive Rights over Rivers 209 149. The Stade or Brunshausen Toll 210 CHAPTER IX. EIGHT OP JURISDICTION. 150.. Incidents of the Right of Empire 214 151. National Sovereignty properly Territorial 215 152. The Jus Civile of a State operative only within its Territory 216 153. The Comity of Nations sometimes gives effect to Foreign Law 218 154. Personal, Real, and Mixed Statutes 220 155. Growth of Private Liternational Jurisprudence 222 * In numbering paragraph 136 in the Text, the Continuity of the Serie.^ has been accidentally broken. XX CONTENTS. Page §156. Exceptional j^osition of Europeans whilst resident amongst Asiatics 223 157. Personal Actions of Foreigners 225 158. Extra-Territoriality of certain Foreign Persons and Things 228 159. Merchant Vessels are subject to the Territorial Law 229 160. Right of Emigration 231 161. Domicil, the criterion of National Character 233 162. Jurisdiction and Remedies 234 163. Comity of Nations in regard to Personal Property. 236 164. Domicil of Origin and Domicil of Choice 238 CHAPTER X. RIGHT OF THE SEA. 165. The use of the open Sea common to all mankind. . . 241 166. A Common Law of the Sea 242 167. Affinity to the Roman Law in certain matters 243 168. Origin of the Admiralty Jurisdiction 344 169. Its connection with that of the Consules Maris . . . 346 170. Piracy justiciable everywhere 247 171. Concurrency of Admiralty with National Juris- diction 248 172. National Jurisdiction over the open Sea 248 1 73. Maritime Jurisdiction of a Nation 249 174. Territorial Seas distinguished from Jurisdictional waters 250 1 75. Prescriptive Right over portions of the Sea 252 176. Right of Fishery on the High Seas 253 177. Neutrality of Jurisdictional Waters 254 178. Right of Maritime Toll in respect of Lighthouses and Sea-marks 2^7 CONTENTS. XXI Page §179. Prescriptive Right of Sea-tolls. The Sound Dues. . . 258 180. The Straits between the Mediterranean and the Black Sea a6o 181. The Comity of Nations in matters of Revenue and Quarantine 261 182. Right of Fishery in Jurisdictional Waters 264 183. Ceremonial of the High Seas 266 1 84. Ceremonial within Jurisdictional Waters 270 CHAPTER XI. RIGHT OP LEGATION. 185. Origin of Legations 272 *i8^. The person of an Ambassador sacred 273 184. The Right of Legation an Imperfect Right 274 185. Reception of an Ambassador discretional 275 186. Conditional Reception of a Subject as a Foreign Minister 276 187. Various Orders of Diplomatic Agents 278 188. Classification of Public Ministers in the Eighteenth Century 281 189. Rule of the Congress of Vienna 282 1 90. Diplomatic Agents of the First Class 2 84 191 . Diplomatic Agents of the Second. Class 286 192. Diplomatic Agents of the Third and the Fourth Class 288 1 93. Resident Missions 289 194. Moldavian and Walachian Charges d^ Affaires at the Ottoman Porte 291 195. Letters of Credence 292 196. Full Powers 297 * In numbering the paragraphs in the Text, three numbers, 183, 184, and 185, have been inadvertently repeated. xxii CONTENTS. Page § 197. Instructions 399 198. Ceremonial of Reception 301 199. The Sacred Character of an Ambassador 303 200. His Extra-Territoriality 304 201. Extra-Territoriality of the Ambassador's Hotel, and of his Suite 306 202. The Ambassador's Jurisdiction over ih.e personnel of the Embassy 307 203. Liability of an Ambassador to the payment of Local Dues 308 204 Liberty of Religious Worship 309 205 Inviolability of an Ambassador passing through the Territory of a Third Power 311 206 Consuls not Diplomatic Agents 316 CHAPTER XII. EIGHT OF TREATY. 207. The Sacred Character of Leagues between Nations 320 2d8. Leagues may be in confirmation or in extension of Natural Right 322 209. Religious Obligation of every League 323 210. Equal and Unequal Leagues 324 211. Unequal Leagues not contrary to Equity 325 212. Personal and Real Leagues 326 213. Tests of Continuing Leagues 327 214. The Holy Alliance of 1815 329 215- History of the Holy Alliance 331 216. The Family Compact of the House of Bourbon 334 217. Treaties of Navigation and Commerce ^•^6 218. Treaties of Jurisdiction 330 219. Treaties of Extra-Tradition 343 230. Civil Law of the Romans as to Fugitives from Justice 344 CONTENTS. xxiii Page § 321. Common Law of Nations 345 23a. Extra-Tradition of Fugitive Slaves and of Deserters a frequent subject of Treaty-engagement 346 333. Extra-Tradition of Political Oifenders exceptional .. 348 334. Treaties of Extra-Tradition for the most part tem- porary 349 235. Treaties of Boundary 354 226. Judicial Decisions as to the Permanent Object of Certain Treaties 356 227- Treaties which create a Servitude of Public Law... 359 228. Treaties of Equal and Unequal Alliance 361 229. Treaties of Protection 363 230. Treaties of Subsidy ^6^ 231. Treaties of Guaranty 367 233. Treaties of Neutrality 373 233. Signature and Ratification of Treaties 374 234. Expiration and Renewal of Treaties. 376 CHAPTER I. NATIONS AS SUBJECTS OF LAW. Nations independent political Communities — Science of the Law of Nations — Element of Roman Law — Definition of a State adopted by Grotius — Puffendorf's Definition of a State — Christian de WoliF — Vattel's Definition of a State — Growth of Natural Society — Natural Society of Nations — Nationalisation and Denationalisation of States • — Hobbes' view of political Society — Equality of Nations — Perfect and Imperfect Eights of Nations — Eights incidental to the Eight of Self-preservation — Obligations corresponding to Eights— The good offices of Nations discretional^Eight of Coalition. § I. The term Nation, in its primary and etymolo- Nations, gical sense, denotes a race of men, in other words, an ent poU- aggregate body of persons, exceeding a single family, ^mlitie™ who are connected by the ties of a common lineage, and perhaps by a common language. In a secondary and poHtical sense the term Nation signifies a society of persons occupying a common territory, and united under a common government, in other words, a Com- monwealth or State. It is from this latter point of view that we regard Nations, when we speak of their mutual intercourse being governed by certain rules, which are of permanent obHgation, and from the operation of which no Nation can withdraw itself, without renouncing at the same time the fellowship of other Nations. Those rules, being of universal application, admit of scientific investigation, and may be reduced to method, and the science which is con- versant with those rules is the Science of the Law of Nations, in other words. International Juris- prudence. PART I. B ^ NATIONS AS SUBJECTS OF LAW. Science of § 2. The Science of the Law of Nations may be Nation! ° accordingly defined to be the Science of the Rules which govern the International Life of States. AU States however do not enjoy International Life. Thus the States which constitute the North American Union do not exercise individually any international action, either in relation to one another or in relation to foreign States. The States which form the Hel- vetic Confederation are under similar conditions, as well as the Christian States of the Ottoman Empire. On the other hand, the States which compose the Germanic Confederation are both Germanic States and European Nations. Element of § 3. We must uot expect to find in the works of Law. the earlier writers on Public Law any very complete definition of the elements, which impart to a State the character of a Nation. Amidst the total dis- organisation of the European State-System conse- quent on the Reformation and the religious alliances of the Thirty Years' War, Grotius found no element remaining either in the Feudal or in the Ecclesias- tical Body of Law, upon which he could venture to buUd up a system of permanent relations between Nations. He fell back accordingly upon those views of a State-System to which the early Jxirisprudence of Rome had given authority, and framed his defi- nition of a State upon the classical model which Cicero de cxists in Ciccros treatise on Pohtical Law\ The pu ica. ^pgg^-j^^g itself, in which the original definition oc- curs, was not indeed before the eyes of Grotius, as it was lost sight of in Western Europe towards the I Est igitur, inquit Africanus, coetus multitudinis juris consensu respublica res populi ; populus et utilitatis communione socia- autem non omnis hominum coetus tus. De Republica, Lib. I. c. 25. quoquo modo congregatua, sed NATIONS AS SUBJECTS OP LAW. 3 close of the twelftli century^, and the fragments of the Vatican Pahmpsest, from which the original text has been partially restored, were only deciphered in the earlier part of the present century ; but the defi- nition of a State in the identical language of the great Homan Jurisconsult, and as falling from the Hps of Scipio Africanus himself, had been embodied by St. Augustine in his " City of God^ ;" and was s. Augua- transmitted therein to the Jurists of the 17 th andchdLte 1 8th centuries. It has been conjectured by the^**' learned cardinal Angelo Mail, the decipherer of the Vatican Palimpsest, that the perusal of Cicero's treatise first suggested to St. Augustine the idea of his incomparable Work. However that may be, the stamp of St. Augustine's approval, having been im- pressed upon the conception of the great Roman Jurisconsult, commended it with additional force to the acceptance of Grotius, who in seeking to con- struct for the first time a system of Public Law upon the combined basis of Natural Right and Universal Consent, was anxious to keep in sight as many as possible of the great landmarks, which the pioneers of Juridical Science had set up, and which had hitherto connected International Jurisprudence with general Morals. § 4. Grotius has accordingly defined a State in Definition these words; "Est autem civitas ccetus perfectus "jopted by hberorum hominum juris* fruendi et communis utili- (^"^oti^^- 2 John of Salisbury in the fecto non est coetus hominum 12th century is the last writer juris consensu et utilitatis com- in Western Europe, who seems to munione sociatus." have had access to the original 4 Jus or Right (Droit) has text of Cicero's treatise. been defined to be The External 3 De Civitate Dei, L. XIX. freedom of the Moral person, c. 21. St. Augustine adds, " ubi Neque enim JmWs nomine aliud ergo non est ista justitia, pro- significatur, quam libertas, quam B 2 4 NATIONS AS SUBJECTS OF LAW. tatis causa sociatusl" It has been remarked by Bar- beyrac in his annotation to this passage, that Grotius has followed Aristotle in defining a State to be a complete Society, in other words, a Society containing within itself all that is necessary for Hving commo- diously and happily. But a more important variation from the classical model may be observed in the sub- stitution of liberorum hominum for multitudinis, a substitution which impHes the freedom of the indi- vidual man in a natural state. It is this freedom of the individual man, which forms the keystone of the arch upon which the whole system of Grotius rests. A State accordingly, in the contemplation of Grotius, is a complete body of free Tnen associated together for the enjoyment of Right and for the common good. Puffen- ^ 2. Puffendorf, on the other hand, whose obiect dorf s defi- "^i-i '^iT r>TkT- -1 c nitionofa was to identity the Law oi JNations with a system oi state. Moral Right based solely on Natural Law, in oppo- sition to the system of Grotius, has thus defined a Civil State : " It is a compound Moral Person, whose will being united and tied together by those cove- nants which before passed amongst the multitude, is deemed the will of all, to the end that it may use and apply the strength and riches of private persons towards maintaining the common peace and security®. The classification of a State under the head of Moral Person for the purpose of assimilating its rights and duties to those of a Natural Person involves a metaphysical conception of the Being of a State. Puifendorf 's definition will accordingly afford no as- quisque habet, facultatibus natu- 5 De Jure Belli et Pacis, L. I. ralibus secundum rectam ratio- c. i. § 14. nam utendi. Hobbes de Civ. (> Law of Nature and of Na c. I. § 7. tions, B. VIII. c. 14. § 13. NATIONS AS SUBJECTS OF LAW. 5 slstance in an inquiry in which the real or constituent elements of a State are the subject of investigation. 5 6. Christian de Wolff, the master of Vattel, does Christian . . de Wolff not pause to define a Nation, but commences his treatise on the Law of Nations by defining its subject to be the science of the Right which Nations or peo- ples enjoy in relation to one another, and of the obli- gations corresponding to it. " Scientiam juris quo gentes sive populi inter se utuntur et obligationum eidem respondentium''." But, in thus defining the sci- ence which he proposes to discuss, De Wolff has indi- rectly indicated wherein the character of a Nation consists, when he speaks of the Right which Nations or peoples enjoy in relation to one another, and the obligations corresponding to it. It is in the capacity of a people to fulfil the obhgations of Natural Society towards other peoples without the consent of any poHtical superior, that we discover the true charac- teristic of International Life. No pohtical body, which does not possess a perfect Hberty of action in such matters, can be in permanent relation to other poH- tical bodies ; for such permanent relation imphes the mutual discharge of the duties of Natural Society, and such mutual discharge can only have permanent place between pohtical bodies which can freely reciprocate good ofiices, in other words, between pohtical bodies which are sui juris and not subject to any political superior. § 7. Vattel at the immediate outset of his work Vattei's has defined Nations or States in identical terms, as of a"state. " bodies pohtic, societies of men united together for the purpose of promoting their mutual safety and advantage by the joint efforts of their combined 7 Jus Gentium Methodo Scion tifica pertractatum. Prolegomena, §1. b NATIONS AS SUBJECTS OF LAW. strength*'." He then engrafts upon this real defi- nition a metaphysical conception of the Being of a State, analogous to PuiFendorf's notion. " Such a Society has its affairs and its interests ; it deliberates and takes resolutions in common : thus becoming a Moral Person, which possesses an understanding and a will peculiar to itself, and is susceptible of obliga- tions and rights." He afterwards falls back into the track of De Wolff, and defines the Law of Nations to be the Science of the Right which has place between Nations or States, and the obhgations corresponding to that Right ; and further, as he proceeds to exa- mine that Right and the corresponding obligations, he characterises Nations as Sovereign States^, which are to be considered as so many free persons Hving together in a State of Nature. " It is a settled point," he observes, " with writers on natural law, that all men inherit from Nature perfect Hberty and independence, of which they cannot be deprived without their own consent. In a State the indi- vidual citizens do not enjoy them fully and absolutely, because they have made a partial surrender of them to the Sovereign. But the body of the Nation, the State, remains absolutely free and independent with respect to all other men and all other nations, as long as it has not voluntarily submitted to them^"." Growth of § 8. Man is so constituted by Nature, that he can- Society, not supply all his own wants, but requires the inter- course and assistance of liis fellow men, either for his immediate preservation, or for the perfection of his Being. The experience of communities on this head confirms what the instinct of the individual man sug- ** Droit des Gens. Prelimi- sovereignty, that is, absolute do- naires, § i. minion over a certain territory. V In tlie sense of territoriul '° Preliminaires, § 4. NATIONS AS SUBJECTS OF LAW. 7 gests. There is accordingly in human nature a ten- dency towards society, and whenever opportunity presents itself, men are found to associate themselves together for the purpose of mutually aiding and assisting one another. There thus grow up spon- taneously relations of Natural Society amongst men. The law of this Natural Society is that each indi- vidual should do for the others every thing which their welfare requires, and which he can perform without neglecting the duty which he owes to him- self, and this obhgation of Natural Society is co-exten- sive with the human race". The Universal Society of the human race being thus an institution of Na- ture, aU men are bound to cultivate it, and to dis- charge its duties ; and they cannot release themselves from that obhgation by any convention, or by any private association. When, therefore, men unite themselves in Civil Society for the piirpose of forming themselves into a State, they may enter into positive engagements towards one another individually, and towards the State as a commtinity, but they continue stUl to be under the obligations of Natural Society towards the rest of mankind. The mode of dis- charging these obhgations may be influenced by the institution of Civil Society, inasmuch as the individual members of a poHtical community having agreed in certain things to act in common, and having resigned their rights, and submitted their will to the common body in every thuig which regards their welfare as a community, the duty of discharging the obligations of Natural Society towards strangers, in aU matters wherein the liberty of the indiAddual members has been restricted, devolves upon the common body ; in other words, upon the State. There thus grow up " Prelimiuaircs, § lo. 8 NATIONS AS SOBJECTS OF LAW. spontaneously relations of Natural Society amongst States, the purpose of which is the interchange of good offices between poHtical communities for their mutual preservation, and for the advancement of the happiness of one another. Pohtical communities par- ticipate in this Natural Society, as free and inde- pendent bodies of men, under conditions analogous to those under which individual men participate in Civil Society. " As men," writes Vattel, " are subject to the laws of Natiure, and as their union in Civil Society cannot have exempted them from the obli- gation to observe those laws, since by that union they do not cease to be men, the entire Nation, whose common will is but the result of the united wills of the citizens, remains subject to the laws of Nature, and is bound to respect them in aU its proceedings ^l Natural § p. International Society is thus in its elementary Nations"^ couditiou the most enlarged phase of Natural So- ciety, wherein men hold intercourse with one another, not individually and immediately as in Civil Society, but collectively and by representation, the Body of men, of which a pohtical community consists, holding- intercourse with other like Bodies of men through the medium of the State, the iaternal organisation of which is immaterial, provided it represents the Civil Society for all international purposes. It is necessary for this end, that a State shoidd possess aU the qualifications for Natural Society, which the individual members of it inherit from Nature, and should be able to perform towards other States every thing which their welfare requires, and Avhich it can effect without neglecting the duty which it owes to its own members. A State miist therefore for the purposes of International Society be free and inde- '- Preliminaires, § 5. NATIONS AS SUBJECTS OF LAW. 9 pendent of all other States, in like manner as indivi- dual men are by nature free and independent of one another. Independence is accordingly the funda- mental element which imparts to a State the cha- racter of a Nation. A Nation is in fact a pohtical body, capable of discharging without the consent of any pohtical superior the obhgations of Natural So- ciety towards other pohtical bodies ; and of regulating in concert with them the mode of discharging those obligations, either as regards the mutual action of the communities themselves, or as concerns the inter- course between individual members of them. S ID. A State is admitted into the fellowship of ^ationaii- ■KT- -1 71 1 •• P-T1 sation of Nations either overtly by the recognition of its Inde- states. pendence in some Pubhc Act on the part of the Esta- bhshed Powers, or tacitly by being aUowed to be a contracting party to a Public Convention entered into with the Estabhshed Powers. Thus the States of the Roman Empire of the Germans, upon the sig- nature of the Treaty of Westphalia, became de jure Treaty of . . . Westpha- members of the European family of Nations. Their Ua. capacity to make conventions among themselves and with non-Germanic Powers, without the pohtical sanction of the Emperor and the Empire, had been under the Vlllth Article of that Treaty exphcitly recognised by the estabhshed Powers, and so became part of the Public Law of Europe. On the other hand the Federal Union of North American States was de facto recognised as a Nation by France, when Louis XVIth concluded the Treaties of Paris, (Feb. 6th, 1778,) with the Envoys of the Thirteen Provinces ; and by the Low Countries, when the States General concluded the Treaty of the Hague with them, (Octr. 8th, 1782) ; and the claim of the Union to be gene- rally regarded as a Nation, became indisputable from 10 NATIONS AS SUBJECTS OF LAW. the day when the Mother Country acknowledged de facto her former dependencies to be sui juris by enter- ing into international engagements with the Federal Union. (Treaty of Versailles, Sept. 3, 1783.) Denation- On the other hand, the Denationalisation of a State alisation ,, . i i ji *_l j_ i_ of States, ensues, upon its ceasing to have the capacity to enter into engagements freely with other Nations, whether it has voluntarily renounced its capacity, or has been deprived of it by a superior Power. Thus the Repub- hcs of the Valais and of Geneva, and the Principality of Neuchatel, voluntarily renounced their capacity to enter into treaty-engagements with foreign powers upon their admission into the Union of Helvetic States", and the separate Nationahty of each State was thenceforth merged in the common Nationality of the Federal Union. On the other hand, the princes of the Germanic Empire who were mediatised upon Confedera- the formation of the Confederation of the Rhine, thTiihine, (July 12, 1806",) were interdicted by the independ- ^806 '^' ®^^ members of that Confederation, to whose sove- reignty they had been made respectively subject, from entering into treaty-engagements with Foreign Powers. They accordingly ceased to occupy the place in the family of Nations, into which they had been admitted by the Treaty of Westphalia. Hobbes' § II. Hobbcs' has adopted a view of the origin of poiHicai Political Society, according to which no community society. would be entitled to be regarded as a Nation, unless it were adequate to maintain its independence against all external assault by its own intrinsic strength ^^ "3 Martens, Nouveau Kecueil qui in mutuam opem conspirant, de Traites, IV. p. i68. tantus sit, ut paucorum hominum 14 Ibid. VIII. p. 488. ad hostes acoessio non sit ipsis '5 Necessarium itaque est ad conspicui momenti ad victoriam. securitatem, quam quwrimus ob- De Give, c. 5. § 3. tinendam, ut numerus eoruni, NATIONS AS SUBJECTS OF LAW. 11 Such an idea of independence as applicable to Poli- tical Societies, however tenable it may be in abstract theory, will be found in practice to be too absolute, as there are weaker and stronger members of the family of Nations, and the weaker members owe the maintenance of their independence to the mutual fears and jealousies of the more powerful Nations, whilst on the other hand the stronger members cotdd not maintain themselves single-handed against the combined assaiilt of the weaker Nations. A State is entitled to be regarded as independent, if it be not de jure dependent upon any other State for its free- dom of political action. §12. The independence of a Nation is absolute. Equality of and not subject to qualification, so that Nations in respect of their intercourse under the Common Law are Peers or Equals^® ; and their rights and obliga- tions are imder that law reciprocal. Power and weakness do not in this respect give rise to any dis- tinction, and a Free City of Germany is as much an independent State as the Empire of the Ottomans. It results from this equality, that whatever is lawful for one Nation is equally lawful for another, and whatever is unjustifiable in the one is equally unjusti- fiable in the other. As independence is an essential condition of Na- tionahty, a Nation will be justified in doing or prac- tising whatever is necessary for the maintenance of its independence. The right of self-defence is accord- Eight of ingly a primary right of Nations, and it may be exer- fence.* cised either by way of resistance to immediate as- sault, or by way of precaution against threatened aggression. The indefeasible right of every Nation iS Vattel, Preliminaires, § i8. Heffter, § 27. KlUVjer, § 8g. Wolff, § 16. 12 NATIONS AS SUBJECTS OF LAW. to provide for its own defence, is classed by Vattel amongst its perfect rights. Perfect and § 1 3. The distinction which Vattel has drawn ETghtsrf between the perfect and the imperfect rights of Nations. Nations may be conveniently noticed here. " The perfect right," says VatteP'', " is that which is accom- panied by the right of compelling those who refuse to fulfil the corresponding obligation ; the imperfect right is unaccompanied by that right of compulsion. The perfect obligation is that which gives to the opposite party the right of compulsion ; the imper- fect only gives him the right to ask. The right is always imperfect, when the corresponding obhgation depends on the judgment of the party in whose breast it exists, for if in such a case we had a right to compel him, he woidd no longer enjoy the Hberty of determining as to the conduct which he should pursue, in order to obey the dictates of his own con- science. Our obhgation is always imperfect with respect to other people, as long as we possess the liberty of judging how we are to act, and we retain that hberty on all occasions on which we ought to be free." A perfect right alone would thus seem to be the subject of Law. An imperfect right is a subject of Comity. Rights in- § 1 4. Accordingly, a reasonable fear of danger to theTight of its own independence, is held to justify a Nation in vatioT'^'^ having recourse to war in order to prevent attack. This right of a Nation to preserve itself from injury by anticipating attack, is a perfect right. It is the Bight of right of security, and is incidental to the right of ' «™" y- self-preservation. "When an injiiry has been inflicted, the same right of self-preservation authorizes the injured Nation to obtain complete reparation, and to '7 Droit des Gens. Preliniinaircs, § 17. STATIONS AS SUBJECTS OF LAW. 13 employ force for that purpose. This may be termed the right of indemnity. Right of rm-i n If ■ •!■ Indemnity. The right oi seli-preservation necessarily involves all other incidental rights which are essential as means to give effect to the principal end '^. Thus a Nation, after it has been attacked and has worsted its enemy, wUl be justified by taking precautions against a second attack, by depriving its enemy of the means of renewing his aggression. The justice of all war depends upon the principles involved in the right of security and the right of indemnity. Whatever strikes at those rights strikes at the Perfect Rights of a Nation, and is a just cause of war. • § 1 5. Every right which a Nation possesses under obUga- the Common Law has its corresponding obligation. re°pond[ng The right of security accordingly involves the obliga- *° lights. tion of self-restraint, so as to avoid encroaching on the independence of other States, and the right of indemnity involves the obhgation of granting redress. A Nation is mistress of her own actions as long as they do not affect the perfect rights of other Nations. It owes as a duty to itself, in the first instance, and in preference to all other Nations, to do every thing that can promote its own happiness and per- fection, but it must not overstep the limit beyond which it cannot pass without impairing the happi- ness and perfection of another Nation. On the other hand, when a Nation cannot contribute to the welfare of another Nation without doing an essential injury to itself, it has reached the limit of its natural obliga- tions towards that Nation, and it is considered to be under a disability to perform any further good offices towards it. S 1 6. Every Nation is entitled to form its own The good "' -^ offices of 18 Wheaton's Elements, pt. II. c. i. § 1. 14 NATIONS AS SUBJFX'TS OF LAW. diacre"' judgment whether it can perform towards another tionai. Nation any good office without neglecting the duty which it owes to itself ^l Treaty-engagements how- ever may control the exercise of a Nation's free judg- ment in such matters, for a Nation may voluntarily wave some portion of the liberty, which is by Nature inherent in it. In aU cases, however, in which a Nation has the right of judging what its duty re- quires, no other Nation can compel it to act in this or that particular manner ; for any attempt at such compulsion would be an encroachment on the inde- pendence of that Nation. It is otherwise where a Nation has voluntarily boxmd itself to perform a par- ticular good office towards another Nation ; in such a case it has exercised its independence as a Nation when it contracted the particular engagement, the strict fulfilment of which has become henceforth a matter of good faith, and not a sign of dependence. Right § 1 7- Since Nations are independent communities tion. holding intercourse with one another on terms of equahty, every Nation is at hberty to regulate its own actions by its own sense of duty within the sphere of its perfect Rights. Hence a Nation is on many occa- sions under the obHgation of allowing certain things to be done by another Nation, although it may dis- approve the same, because it cannot prevent them by force without violating the independence and equahty of that Nation, and so destroying the foundation of the Natural Society of Nations. The laws on which that natural society rests are of such paramount importance to the safety of all Nations, that if a more powerful State were at hberty upon its own view of justice or expediency to set them aside in regard to a weaker State, no Nation could rely with any security '9 Vattel, Preliminaires, § i6. NATIONS AS SUBJECTS OF LAW. 15 upon the preservation of its own existence. But every Nation has a perfect right to those things which are necessary to its preservation, and every State enters into the Society of Nations upon that understanding. All Nations have accordingly a right to combine their strength for the purpose of repress- ing any one or more Nations, which seek to infringe any cardinal rule of international life^. The exercise of that Right however must not extend beyond those limits which the interests of Natural Society mark out ; it must be in its turn so regulated, as not to prejudice the independence of the Nation, which has provoked the interference of its Compeers. 20 Vattel, Droit des Gens, L II. § 53. CHAPTER IT. INCIDENTS AND MODIFICATIONS OF INTERNATIONAL LIFE. Continuity of International Life — Determination of International Life — International recognition of Independence — International Life not determined by political changes within a State — Personal Trea- ties — Keal Treaties when affected by political changes — Sovereignty disting-uished from Independence — Semi-Sovereign States a Sole- cism — Conventional Independence of States — Independent States under Protection — The Principality of Monaco — The Lordship of Kuiphausen — The United States of the Ionian Islands — Neutrality of a Protected Independent State — The Free City of Cracow — Its internal Constitution a subject of treaty — Cracow and the Ionian Islands — The extinct Kepublic of Poglizza — The Republic of An- dorre — The Republic of San Marino. Continuity § 1 8. The peculiar objects of the Law of Nations of Inter- beingf the external relations which exist between national ^ *^ Life. independent political Communities, considered as entire Communities, it is immaterial for the purposes of that law, what may be the internal organisation of such Communities, further than to ascertain in what portion the Supreme Power resides ; for the Supreme Power controls the entire Community, and the will of the Supreme Power is the will of the Community itself in matters of external, equally as of internal, law. The Supreme Power of a State is termed the Sovereign Power properly, in reference to the mem- bers of the State who are subject to it ; but publicists have sometimes used the term Sovereign Power in a metaphorical sense, to denote the entire State or Nation, viewed from without, and the Law of Nations has accordingly been defined by them to be the law INCIDENTS AND MODIFICATIONS, &;C. 17 wliich regards the conduct of Sovereign Powers in relation to one another ; the intercourse between States or Nations being, as a matter of fact, carried on between the Sovereign portions of them\ Hence the person of the Sovereign, or Chief of the State, has been taken to represent the whole Community, and has become identified with it for purposes of negotiation and treaty. It is immaterial for inter- national purposes what may be the peculiar orga- nisation of the Sovereign Power within a State. For instance, whether the Chief of the State be an hereditary or an elective Monarch, whether his tenure of office be for life or for a term of years, whether his power within the State be exercised absolutely ac- cording to his own will or under limitations accord- ing to established rules, may be considerations of high importance to the subject members of each State, but are matters which do not concern other States or Nations. It is however of concern to other States or Nations that the international life of a State shoTild not be interrupted by any change of internal order, as for instance, by the natm-al or pohtical demise of the Chief of the State. Hence in States where the most absolute form of Monarchy has prevailed, and where Absolute the person of the Prince has been as closely as pos- ^^g^' sible identified with the State itself, the Sovereign Power has' nevertheless been distinguished in law from the person of the Prince, and the international relations between two such States have been con- sidered to be maintained de jure between the two Crowns. Treaty- engagements between such States have accordingly not determined upon the natural or political demise of the Princes, who were the original parties to the treaties, but have been considered to I Austin on Jurisprudence, p. 208. PART I. C 18 INCIDENTS AND MODIFICATIONS OF attach to their Crowns, and the obHgations of the treaties have devolved to their successors in the Sovereignty. In other forms of State-Government, the internal constitution of which allows direct nego- tiation with other States ta be carried on in the name of the State itself, the continuity of the external life of the State has been equally exempt from any in- terruption by internal changes. Determi- | jp There are however circumstances under which interna- the international life of a State may determine. Thus a State may be merged in its entirety in another State, and become a province or department of that State ; or it may be incorporated into a system of States, and become clothed with the Nationahty of the Union. Thus the kingdom of Navarre has been merged in the kingdom of Spain, and has become a province of that kingdom ; whilst the Duchy of Bur- gundy has been similarly merged in the kingdom of France : on the other hand, the Principahty of Neu- chatel and the Republic of Valais have both been incorporated into the Union of Helvetic States, and have severally ceased to maintain independent rela- tions with Foreign Powers. Again, a State may undergo division, and be converted into two or more independent States ; or it may be broken up, and its fragments may be absorbed into the neighbouring The king- States. Thus the kingdom of the Netherlands under- Nether- ^ went division in 183 1, and was converted into the lands. ^^Q independent kingdoms of Holland and Belgium ; whilst the kingdom of Poland has been broken up and its fragments absorbed into the three neighbour- ing States. The international Hfe of a State may determine at its own will, or by conquest, without the sanction of other States ; b\it the transformation of an independent State into two or more independent INTERNATIONAL LIFE. 19 States, in other words, the creation of a new in- dependent State, is not complete until other Nations have recognised its National character. It is the quality of Independence for the first time asserted on behalf of a State which requires recognition on the part of other Nations, not the increased or diminished extent of its territorial possessions. A State may indeed notify to other States any important additions to its territorial limits, which it may have acquired either by occupation or by cession, but such notifica- tions are matters of courtesy for mutual convenience, and the announcement of the fact of any such acqui- sition is not obHgatory upon the State which makes it. Thus the United States of North America might have annexed the territory of Texas, and might have Annex- thought fit to notify to other nations the addition of Texaa° a new State to the Union, but the question of right was complete upon the admission of Texas into the Union under a Resolution of Congress, and the an- nexation required no recognition from third parties to give it efiect. On the other hand, the transformation of the ancient kingdom of New Spain into the several independent Republics of Central America required recognition from other Powers, before it could be regarded as internationally complete, as the result of that transformation was to give birth to new inde- pendent political bodies. § 20. A Dependency may separate itself from the intema- independent political community of which it has been *ognftion a member, and may declare itself an Independent °f ^nde- •' , CI pendenee. Sovereign State ; and so long as the new State con- fines its action within the Civil Society of which it is composed, it does not require any recognition of its Sovereignty from other States. But if it seeks to hold international intercourse with other States, and c 2 20 INCIDENTS AND MODIFICATIONS OF claims to be received into the fellowship of Nations upon terms of equality and reciprocity with other Nations, it must obtain from them the recognition of its Independence as a preliminary step. Every other State is at liberty to grant or withhold this recogni- tion, subject to the consequences of its own conduct in this respect ; as for instance, if it grants such recognition, it may incur the hostUity of the State from which the new State has separated itself; if it refuses such recognition, it may incur the hostility of the new State or its allies ; but until such recognition has been universal on the part of other States, the new State is entitled to the exercise of international privileges in relation to those States only which have recognised its independence I This recognition may take place explicitly under the express provisions of a treaty of friendship or alliance, in which the inde- pendence of the new State is guaranteed by its ally : thus France recognised and guaranteed the inde- pendence of the United States of America by the Treaty of treaty of Paris ^ (Feb, 6, 1778); and Prussia in a 6,T7'78.^ ' similar manner recognised and guaranteed the Con- federation of the Rhine by the Treaty of TUsit*, (July 7, 1807) ; or by implication, upon the mutual interchange of accredited envoys, whereby either State acknowledges de facto the competency of the other to negotiate and contract engagements under the Law of Nations. Interna- § 21. The International Life of a State is not deter- not'deter- ""^^"^^^ ^J ^^ internal Revolution, whereby the Su- mmed by preme Power of the State is transferred from one ohangea portiou of the body politic to another portion. A state" ^ State does not enjoy any international rights by rea- i Wheaton, Part I. c. 2. ^ 6. 3 Martens, Recueil, II. p. 605. 4 Ibid. VIII. p. 641. INTBBNATIONAL LIFE. 21 son of its peculiar internal organisation, and it there- fore does not forfeit any such right by a modification of its internal constitution, neither can it thereby dis- charge itself from any of its obligations towards other Nations. Pending a Revolution, the ordinary rela- tions of a State towards other States may be inter- rupted owing to the suspended action of the Supreme Power of the State, and its temporary inability to direct the will of the entire community. But the interruption of ordinary international intercourse is an abnormal state of things, which ceases immediately upon the restoration of internal order within the State, and if the Revolution fails, the status ante revives : if, on the other hand, the Revolution proves successful, the government de facto succeeds to the rights and obHgations of its predecessor in all inter- national matters, and intercourse is resumed with other nations on that understanding. There may be exceptions however to this rule with respect to cer- tain treaty- engagements, which come under the gene- ral division^ oi personal as contradistinguished from Personal real treaties. Of such kind was the famous treaty of ®^*^^^' alliance® concluded in 1761, under the name of the Family Compact, between the Very Christian King The Fami- and the CathoHc King, and to which the other reign- Ju'^^^^*' ing Princes of the House of Bourbon were invited to accede. The engagements of this treaty necessarily determined from the moment when the princes of the House of Bourbon ceased to reign in France. § 22. On the other hand, the identity of a Repub- EeaiTrea- lican State in respect of real treaties is not destroyed by its conversion into a Monarchical State ; " Every alliance," writes VatteF, " made by a Republic is in 5 Vattel, B. II. c. 12. § 183. ^ Martens, Recueil, I. p. 16. Wolff, Jus Gentium, § 414. 7 Vattel, B. II. c. 12. § 185. 22 INCIDENTS AND MODIFICATIONS OF its own natTxre real, for it relates only to the body of the State. When a free People, a popular State, or an aristocratical Republic concludes a treaty, it is the State itself which contracts, and her engagements do not depend on the lives of those who were only the instruments in forming them ; the members of the people or of the governing body change and succeed each other, but the State still continues the same. Since, therefore, such a treaty relates directly to the body of the State, it subsists, though the form of the Republic should happen to be changed, even though it should be transferred iato a Monarchy. For the State and the Nation are stdl the same, not- withstanding every change that may take place in the form of the government, and the treaty concluded with the Nation remains in force as long as the Nation exists. But it is manifest that all treaties relating to the form of government are exceptions to this rule. Thus two popular States that have treated expressly, or that evidently appear to have treated with the view of maintaining themselves in concert in their state of liberty and popular government, cease to be aUies from the very moment that one of them has submitted to be governed by a single person." " Enimvero si in foedere consensum sit, quod statui non nisi populari proprium sit, per se patet, sublato statu populari toUi etiam fcedus, ac per consequens mutata reipublicae forma idem finiri®." Sovereign- §23. Grotius has been content to define a State from\lSe- to be a complete body of free persons, associated pendence. together to cujoy peaceably their Right, and for their common benefit"; and has declared the mutual rela- tions of such bodies to be the objects of Public Law. 8 Wolff, Jus Gentium, § 416. ') De Jure Belli et Pacis, L. I. c. i. § 14. INTERNATIONAL LIFE. 23 Wolffs" has not adopted any different view when he defined a nation aa " miiltitudo hominum in civi- tatem consociatorum." Vattel, on the other hand, has defined States or Nations as "societies of men united together for the purpose of promoting their mutual safety and advantage by the joint efforts of their combined strength ^^ ;" but he has subsequently endeavoured to attain to greater precision, when he says, that " every Nation that governs itself, under what form soever, without dependence on any foreign power, is a Sovereign State. Its rights are naturally the same as those of any other State. Such are the moral persons who five together in a natural society, subject to the Law of Nations. To give a nation a right to make an immediate figure in this grand society, it is sufficient that it be really sovereign and independent ; that is, that it govern itself by its own authority and laws^l" Vattel, however, has gone too far in combining Sovereignty with Independence as the criteria of Nationality ; for Sovereign States are not necessarily Nations, while States internationally independent are not always Sovereign Powers. Thus the States of North America which compose the Fede- The united ral Union are aU Sovereign States, but the nationality Amerfol of each State is merged in the nationahty of the Union. I"'?'"®'^" Under the Federal compact, the members of the Union have precluded themselves from entering seve- rally into treaty- engagements with Foreign Powers, and they can only enter into such engagements jointly as an Union of States, the treaty-making power being under the constitution of the Union vested in the Federal Government. The States have accordingly ceased to be severally Independent Bodies 'o Wolff, Jus Gentium, Prolegomena, § 2. i' Pr61iminaircs, § 9. 'J Droit des Gens, L. I. c. i. § 4. 24 INCIDENTS AND MODIFICATIONS OF Politic, and their respective rights and obligations are not the. subjects of international law, but are regu- lated by the constitutional law of the Union. The relations of the Union, on the other hand, towards the several component States are similarly determined by the Federal Compact, whilst the relations of the Union itself towards Foreign States are regulated by a law independent of the Federal Compact ; to wit, the Law of Nations. On the other hand, there may be States which maintain independent relations with other nations, but have not full rights of sovereignty. The States Thus the Statcs of the Koman Empire of the Ger- man Em- mans enjoyed, subsequently to the peace of West- G^rmana* phaha, the right to form offensive and defensive al- d"'^t^b°t li^^ces amongst themselves and with Foreign Powers, not Sove- yet uo alteration took place in their feudatory rela- sT^e. tion to the Chief of the Empire, as their Supreme Lord or Suzerain, until 1806, when the Emperor Francis II declared the Germanic Empire to be dis- solved, and released the Electors, Princes, and States from their allegiance to him as Chief of the Empire. They thereupon became for the first time Sovereign Powers. So the Barbary States, although tributaries of the Ottoman Porte, and subject to the Suzerainty of the Sultan of Constantinople, have exercised the right of entering into treaty- engagements, as In- dependent Powers, with the Christian Nations of Europe. Semi-SoTe- § 24. Somc of the more recent writers on the Law States a of Nations, such as Martensi^ Kluber^^ and Heffterl^ solecism, ^avc applied the distinctive epithet of Semi-Sove- reign to such States as are recognised as Independ- ent States under the Public Law of Europe, but have ■3 Precis de Droits des Gens, § 20. '4 Droit des Gens, § 24. 15 Heffter, Das Europiiische Vblkerrecht, § 19. INTEENATIONAL LIFE. 25 not complete rights of Sovereignty. The term Semi- Sovereign seems to have been introduced .by John Jacob Moser, in his " Essays on the Law of Nations in time of Peace '^" Heflffcer, although he recognises the classification, considers it to be objectionable; and Wheaton has observed, that, " the denomination of Semi-Sovereign States is an apparent solecism in terms. As no State," he says, "can be considered at once sove- reign and subject, so no State can with strict pro- priety be considered as half or imperfectly supreme. But as some States are by special compact dependent upon other States with respect to the exercise of certain rights essential to perfect sovereignty, such States have been termed Semi-Sovereign States." §25. It is not desirable that this classification Conven- of certain States as Semi-Sovereign States should find dependent a place in a system of law which is concerned only ^*'^'^^- with the external relations, which States bear to one another as independent pohtical communities^''. The term itself, " Semi-Sovereign," points at once to an- other system of political law, and suggests rather a subordination of position analogous to that in which the Princes and States of the Germanic Empire stood in former days relatively to the Emperor as their Suzerain or Supreme Lord, than a modification of the manner in which the foreign relations of an inde- pendent State, as such, are maintained. The inter- national rights of the States, which rank in this cate- gory, are in substance as complete as those of any other independent State, and it is only in the mode in which those rights are exercised that a distinction 16 Beytrage zum Volkerrecht wic, 1763), adopts the division of in Friedenzeiten I. p. 508, cited States of the First Order and by Gunther I. p. 1 20. States of Second Order, meaning 17 Neyron in his Frincipes du by the latter term States under a droit des Gens Europ^ens, (Bruns- feudal Suzerain. 26 INCIDENTS AND MODIFICATIONS OF is found to exist. Independent States in their nor- mal condition commimicate immediately with one another ; but there are exceptional instances in which the communications of an Independent State with Foreign Powers are carried on through the medium of a third Power, which has been acknowledged by pub- lic treaties as the authorized organ of such communi- cations. In certain of these cases the Intermediate Power has been recognised by Foreign States as ex- ercising a protection (patrocinium) over the weaker State, and has been acknowledged in terms as the Pro- Protected tecting Power. The designation of Pro^ec^et^ /Stores'* would accordingly seem prima facie to be appro- priate to these States in a system of international law, as being suggestive of their essential peculiar- ity ; but as there are many protected States, which in accepting that character have abdicated altogether their independence, and do not maintain independent political relations under any modification with Foreign Powers, the designation of " Protected States" would be not sufficiently precise, and it would be necessary, in order to avoid confusion, to distinguish them fur- ther as Protected Independent States. But a defini- tion less open to objection is suggested by the consi- deration that the independence wliich this class of States enjoys is regulated in its mode of exercise by Pubhc Conventions. Their independence therefore may fitly be characterised as a Conventional Inde- pendence, in contradistinction to the Watiiral Inde- pendence which the more powerful States enjoy under the common Law of Nations. 18 Grotius, L. I. c. 3. s. 21. Qufest. Jur. Publici, L. I. c. 9, § 3, recognises States which by speaks of States ' qui aub tui- treaty are ' sub patrociuio, non tione sunt.' sub ditione,' and Bynkershbek, INTERNATIONAL LIFE. 27 S 26. The oricfin of these Protected Independent independ- -> ° • 1 . «"* states States IS to be referred either to special treaty-en- protected gagements between two States, under wliich theJ|"Trea-" stronger Power has granted its protection to the*'^»- weaker State, and their treaty-engagements have been formally recognised by the European Powers ; or to some general treaty amongst the European Powers, under which the Protecting Power has un- dertaken to protect the weaker State, and the other Powers have engaged themselves to hold poHtical intercourse with the weaker State only through the medium of the Protecting Power. In the case of Protected States, which are not members of the Family of Nations, the relations between them and the Protecting Power are for the most part founded upon some compact ^^ between them, but as the pro- tected State does not maintain any relations what- ever with Foreign Powers, it is virtually a dependency of the Protecting Power, being distinguished from ordinary dependencies in this respect, that its rights are secured and its obligations limited by compact. It is a dependency suh modo, as distinguished from an absolute dependency. The Native States of India are instances of Pro- Native tected Dependent States, maintaining the most va- india. ° ried relations with the British Government under compacts with the East India Company. All these States acknowledge the supremacy of the British Government, and some of them admit its right to interfere so far in their internal affairs, that the East India Company has become virtually sovereign over them. None of these States, however, hold any poll- 's In the nature of an un- imperii. Grotius, L. II. c. 15. equal alliance cum diininutione s. vii. § 2. 28 INCIDENTS AND MODIFICATIONS OF tical intercourse with one another or with Foreign Powers ^. Prinoi- § 27. The Principality of Monaco and the Seignory Monlco. <^f Kniphausen are instances in Europe of Protected Independent States, the relations of which towards the Protecting Power are settled by special treaty- engagements between the States themselves and the Protecting Powers, and which have been subsequently recognised by the European Powers. Thus the Prince of Monaco, in order to disembarrass his Capital of a Spanish garrison, which had usurped possession of it at a period when the Duchy of Milan was still an appanage of the Spanish Crown, entered into a treaty Conven- with Louis XIII. of France (Convention of Peronne, ronne, i4thi4 Sept. 1641)", whcrcby he placed himself under Sept, 1 64 1, ^-j^^ protection of the King of France, who undertook thenceforth to maintain at his own charge a garrison of five hundred French soldiers in Monaco. This Treaty continued in force and operation down to 1792, when the National Convention of France incor- porated the Principality of Monaco, including the three communes of Monaco, Mentone, and Rocca- bruna, into the French Repubhc, and constituted it within the Department of the Maritime Alps. By the subsequent Treaty of Paris^^ (30 May, 1814), concluded between France on the one part and Austria and her aUies on the other, France renounced possession of Monaco, and the ancient relations between the Prince of Monaco and the King of France, such as they 2° An account of six classes cutta, 1833. British and Fo- of Protected States in India, is reign Keview (1839), '^ol- ^''ii- given in "Sketches of the Ke- p. 154. lations subsisting between the " Schmauss, Corpus Jur. Gen- British Government of India and tium Academicum, I. p. 521. the different Native States," by ^- Martens, N. K. II. p. 5. Captain J. Sutherland, Cal- INTEENATIONAL LIFE. 29 existed before i Jan. 1789, were recognised to be once more in force. By the subsequent Treaty of Treaty of Paria 20 Paris ^^ (20 Nov. 181 5,) concluded between the four Nov.' 18 15. Allied Powers severally on the one part, and France on the other, it was declared that the relations re- established by the Treaty of 30 May, 18 14, between France and the Principality of Monaco, should be at an end, and that analogous relations should thence- forth exist between that PrincipaUty and the King of Sardinia. Those relations were subsequently defined by the Treaty of Turin ^, (Nov. 7, 18 17,) concluded Ti-eaty of between the King of Sardinia and the Prince of Mo- j no°v. naco, almost literally in the words of the Convention of '^'7- Peronne [mutatis mutandis). Thus the King of Sar- dinia is to maintain a garrison at his own expense in Monaco, which is to be under the command of the Prince of Monaco, as Governor for his Majesty, and the King .is not to interfere with the Prince's rights of Sovereignty in other respects. The King of Sar- dinia imdertakes to defend the Prince of Monaco against foreign enemies, to include his name in all treaties of peace, and to allow him to use the Royal Standard of Sardinia in time of war. The Principa- hty meanwhile has its own commercial flag, and Con- suls are accredited by the King of Sardinia to reside at Monaco in order to watch over the commercial in- terests of Sardinian subjects in that port, precisely as in the ports of other Independent States. The inte- grity of the Principality has been materially affected by the annexations of Mentone and Roccabruna to Piedmont in 1848, when the inhabitants of those districts, dissatisfied with the administration of the reigning Prince, voted their annexation to Piedmont. 23 Martens, N. R. II. p. 687. tens, Nouveau Supplement, II. 24 Articles de Protection, Mar- p. 343. sen. 30 INCIDENTS AND MODIFICATIONS OF Cession of The annexation of these districts was accepted by and Ego- the Sardinian Parliament and sanctioned by the King Franco"* ° of Sardinia, whilst the Prince of Monaco has recorded a protest^' against the wrongful act of the Protecting Power. The Lord- ^28. The Ssignorj or Lordship of Kniphausen Kniphau- stands in a more anomalous relation to the Grand Duke of Oldenburg. The State of Kniphausen had originally been a sub-feudum of the Holy Roman Empire, held mediately by its Lord through the Feudal Court of Brussels. After the Emperor of the Romans had by the Treaty of Campo Formio^, (17 Oct. 1797,) renounced possession of the Belgian Provinces, known as the Austrian Low Countries, in favour of the French Republic ; and after this renun- ciation on the part of the Emperor had been further recorded with greater formality in the Treaty of Lune- ville, (9 Feb. 1801^',) Kniphausen was constituted an immediate fief of the German Empire by the Decree of thejDeputation of the Empire on 25th Feb. 1803. Upon the subsequent dissolution of the Roman Em- pire of the Germans in 1806, which was a necessary consequence of the Treaty of Presburg, (26 Dec. 1805,) concluded between the Emperor Francis and the Emperor Napoleon, and which paved the way for the Confederation of the States of the Rhine, (Paris, 12 July, 1806,) the Lord of Kniphausen became an ^5 These districts, as forming the Hereditary Priuce Charles part of the arrondissement (cir- III. By a subsequent Treaty condario) of Nice have since been concluded at Paris (Feb. 2, i86i) ceded by the King of Sardinia to between the Prince of Monaco the Emperor of the French, under and the Emperor of the French, the Treaty of Turin (24 March, the Communes of Mentone and i860), whilst the remainder of Roccabruna havebeen definitively the Principality of Monaco still ceded to France, continues to be an Independent ^6 Martens, Recueil, VI. p. 421. State under the Government of ^7 Ibid. VII. p. 296. INTERNATIONAL LIFE. 31 independent Sovereign Power. His independence however was of short duration. The Emperor Napo- leon occupied the territory of Kniphausen, and subse- quently transferred it under the Treaty of Tilsit to Treaty of . . Tilsit the Emperor of Rvissia, who ceded it to the Duke of Oldenburg. Upon the restoration of peace in 1815, when the Sovereign Princes and Free Cities of Ger- many, feudatories in former days of the Germanic Empire, united themselves together on a footing of equality as members of the Germanic Confederation, the Lord of Kniphausen was not admitted into the Confederation, in deference to the objections of the Emperor Alexander of Russia. Negotiations however on the subject of Kniphausen were originated at the Congress of Aix-la-ChapeUe in 18 18, and led to the conclusion of the Treaty of Berlin^', (8 June 1825,) Treaty of between Count Bentiack of Kniphausen, and the ^^une Duke of Oldenburg, under the mediation of Russia, '^^s- Prussia, and Austria. Under this Treaty the Count agreed that the Duke of Oldenburg should exercise over him and his family, as territorial Lords of Knip- hausen, a supremacy analogous to that which had appertained to the Emperor of Germany before the dissolution of the Empire. The Seignory of Knip- hausen, by virtue of this conventional subordination of its Lord to a member of the Germanic Confedera- tion, became appurtenant to the lands of the Confe- deration ; and the Treaty itself was guaranteed by the Germanic Confederation in its character of an European Power. The result of these treaty- engage- ments was twofold. Under the Treaty of Berlin the Duke of Oldenburg was bound to discharge towards the Counts of Kniphausen duties of Protection analo- gous to those which the Emperor of Germany had dis- 28 Meyer, Staats-Acten des Deutschen Bundes, II. p. 289. 32 INCIDENTS AXD MODIFICATIONS OF charged, whilst the Empire existed, towards his feudatories ; whilst the Germanic Confederation was bound under the Federal Act to defend the territory of Kniphausen against foreign aggression, by virtue of its recognised subordination to a member of the Confederation. The State of Kniphausen meanwhile retained its own commercial flag, but the Duke of Oldenburg, under the ninth article of the Treaty of Berlin, was constituted the political representative of the Lord and his subjects in their relations with Foreign Powers. The United § 29. The United States of the Ionian Islands are, the Ionian ^"^ 'tbe other hand, an instance of an Independent Islands. State placed by the provisions of a general treaty under the immediate and exclusive Protection of an- other Independent Power. The Seven Islands had formed a portion of the maritime possessions of the RepubHc of Venice antecedent to 1797, when they passed under the sovereignty of the French Republic. They were subsequently occupied by the joint forces of Russia and the Ottoman Porte, and were consti- Treaty of tuted Tuider the treaty of Constantinople ^^ (21 March nopC''*' 1800,) concluded between those two Powers, tribii- 2 1 March, taries of the Sultan, as their Suzerain and Protector, 1800. . . . in like manner as the RepubHc of Ragusa had been an Independent State under the protection of the Sultan since the 14th century. The Seven Islands were subsequently recognised as an Independent Treaty of RcpubHc in i8o2. Under the Treaty of Amiens'". Tr'ir'of Under the secret articles of the Treaty of Tilsit, Tilsit. the Emperor of Russia, in contempt of his guaranty towards the Ottoman Porte, transferred the Seven Islands in fuU sovereignty to France. During the subsequent course of the war. Great Britain acquired ^9 Martens, Kecueil, VII. 41. i° Martens, N. R. III. p. 13. INTERNATIONAL LIFE. 33 possession of six of the Islands, but Corfu remained in the hands of the French down to 1814, when it was ceded under the Treaty of Paris to the Four Allied Powers, and was consequently reserved for their joint disposal, in conformity with the provisions of the Treaty of Pilnitz, as an acquisition made by them in common during the war. Although, therefore, the six smaller Islands were by right of conquest at the abso- kite disposal of Great Britain, Corfu could only be disposed of with the common consent of the Four Al- lied Powers ; Great Britain, as it appears from Lord Castlereagh's Memoirs ^^ had contemplated in 18 14 that a direct Sovereignty over these islands should be given to some acknowledged European Power, and preferred either the King of Sicily or the Emperor of Austria. On the other hand. Count Capo d' Istrias, a native of Corfu, who was in the intimate councils of the Emperor Alexander, suggested to that Sovereign that the Islands should be recognised as an inde- pendent State, and be placed under the protection of Great Britain. The Emperor Francis repudiated altogether the notion of a strictly continental Power Uke Austria embarrassing itself with the charge of insular possessions. Great Britain on the other hand was extremely reluctant to accept the position of a Protecting Power'", and at first withdrew the Six Islands, over which she had an absolute right of dis- posal, from the proposed common arrangement. Great Britain at last consented to accept the charge of Protector of aU the Seven Islands at the urgent instance of the Emperor Alexander, who stated in Conference with the other Powers, that he had pledged himself that the Islands should nei- ^9 Letter of Lord Castlereagh 3° Lord Bathurst to Lord Cas- te Lord Liverpool, vol. x. p. 224. tlereagh, vol. x. p. 441. PAET I, D 34 INCIDENTS AND MODIFICATIONS OF ther be incorporated into any other State, nor become the vassals of any Suzerain ; but should enjoy a con- stitution which would secure their material indepen- dence ; and as Great Britain could alone satisfy what he considered to be a right of the lonians, it was the duty of Great Britain to accept the government of Conven- the Sovcu Islauds. The result was embodied in three Paris" separate Conventions of identical tenor, executed at s^Nov. Paris ■'^\ (5 Nov. i8i5), between Great Britain and her three allies, Bussia, Austria, and Prussia respect- ively, under which the Seven Islands were declared to form a Single Free and Independent State under the immediate and exckisive protection of the King of Great Britaui and Ireland. The trading flag of the United States of the Ionian Islands was acknow- ledged by the contracting parties as the flag of a Free and Independent State, and none but commercial agents or consuls, subject to the regulations to which commercial agents or consuls are subject in other Independent States, were to be accredited to the United States. All the Powers which signed the Treaty of Paris, (30 May, 18 14,) and the Act of the Congress of Vienna, (9 Jtme, 18 15,) and also the King of the Two Sicilies and the Ottoman Porte, were to be invited to accede to the Conventions. The King of the Two Sicilies recognised the Protec- torate of the King of Great Britain by the Conven- tion of London^^ (26 Sept. 18 16,) and the Ottoman Porte by a Special Act'^ (24 April, 18 19,) renounced 31 The Austrian Treaty is in Treaties, (Preussen's Staatsver- Martens, N. E. II. p. 663, and in triige,) published in Berlin, 1852, the British and Foreign State p. 784. Papers, 1815, 181 6. the Bus- 32 Martens, Traite's, IST. E. V. sian Treaty is in the Annual Ee- p. 1 1 6. gister for 1815. The Prussian 33 Ibid. p. 387. Treaty is in the Collection of INTEENATIONAL LIFE. 35 its sovereignty over the Seven Islands and their dependencies in favour of the King of Great Britain, as the Sovereign Protector of the Islands. § 30. The history of the Ionian Islands during the Neutrality late war between Russia and the Ottoman Porte is tected7n- illustrative of the practical inconvenience of adopting gj^™*^^"* the epithet " Semi-Sovereign," as representing the In- ternational Status of a Conventional Independent State. The connection between the Seven Islands and the United Kingdom of Great Britain and Ireland is purely personal. The King of Great Britain and Ireland exercises authority over the Ionian States not Jure CoroncB, but simply ex Pacta ; and the Ionian People are Ionian subjects, not subjects of the British Crown. The Ionian States accordingly do not neces- sarily follow the fortunes of the Crown of Great Britam and Ireland in war and in peace ; they may remain neutral, like other independent States, whUst the Protecting Power is engaged in hostihties with other Powers, and they do not participate in the advantages of any treaty-engagements entered into by the King of Great Britain and Ireland, until he has stipulated specially in behalf of Ionian sub- jects in his character of the Protecting Power of the United Ionian States. At the commencement of the war with Russia, the Executive Government of Great Britain, under a misapprehension that the Protecting Power of a so-called Semi-Sovereign State had certain paramount rights of Sovereignty over it, refused to recognise the neutrahty of Ionian subjects, and a de- cision of a British Court of the Law of Nations^* was invoked on behalf of Ionian subjects to clear away the misapprehension. The classification of this order of States under the head of Conventional Independent 34 The Leucade. Admiralty Prize Cases, 1854 — 56, p. 217. D 2 36 INCIDENTS AND MODIFICATIONS OF States, as already suggested, is calculated to prevent misapprehensions of a like nature in other cases by di- recting attention at once to their special character. The Free § 3 1. Much coufusion of thought has arisen from a CtLow. similar cause respecting the International Status of the City of Cracow and its territory. On the disso- lution of the ancient kingdom of Poland, the City of Cracow and the territory assigned to it was under Convention the Conveutiou of St. Petersburg ^^ (13 Oct. 1795) tersburg, evacuatcd by the Prussian Armies, and united to the 24 Oct. Austrian Monarchy, from which it was again severed Treaty of by Napoleou, and by the subsequent Treaty of liTot! Vienna '*'' (14 Oct. 1809) was attached to the Duchy 1809. Qf "Warsaw, then belonging to the King of Saxony. This latter Duchy, being a new State created by the Emperor Napoleon, was in fact a fourth division of the ancient Kingdom of Poland in favour of a fourth OQCupant. The issue of the campaign of 1812, placed the Emperor Alexander in possession of the various portions of territory, which had served by their union to make up the Duchy of Warsaw, and which were subsequently redistributed between Rus- sia, Austria, and Prussia, under two separate treaties. Treaties of coucluded betwocn Russia and the two other Powers 3 May,' respectively at Vienna (3 May, 1815^''). An addi- '^'^' tional treaty^® of the same date, concluded between the three Powers, provided that the City of Cracow with its territory should be regarded {sera envisagSe) for ever, as a free, independent, and strictly neutral city, under the protection of the three High Contract- ing Powers. The Three Courts under the sixth arti- cle engaged themselves to respect, and cause to be 35 Martens, Traites, K. VI. 37 Martens, Traites, N. R. II. p. 171. P-22S. 36 Ibid. N. R. I. p. 211. 38 Ibid. p. 251. INTERNATIONAL LIFE. 37 respected on all occasions, the neutrality of the Free City of Cracow and its territory. An armed force was not to be introduced into it upon any pretext what- ever at any time. In return, it was understood, and expressly stipulated, that there should not "he granted within the Free City or upon the territory of Cracow any asylum or protection to fugitives from justice, or • to deserters from the dominions of any of the Three Contracting Powers, but that such persons should be immediately surrendered upon a demand of extradi- tion made by the competent authorities. It was further provided, that the City of Cracow should not have the right of levying custom duties, but only pontage and road tolls upon the transit of goods and cattle, according to a tariff regulated by the Commis- sioners of the Three Powers. The other Articles of the Treaty regulated the poUtical constitution of the Free City, and settled various matters of civil and ecclesiastical administration. A further Treaty be- tween the Three Allied Powers of the same date completed their mutual engagements in relation to the Duchy of Warsaw and the various territories which had made up the ancient Kingdom of Poland, as it existed in 1772. Under this Treaty, each of the Contracting Parties was to be at hberty to establish Consuls or Commercial Agents in respect to the Duchy of Warsaw, subject to the usual recognition under the Constitution as approved by the Three Powers ; but no similar provision is found in the Treaty relative to Cracow, and the omission of aU provision in regard to Consuls or Commercial Agents is an important peculiarity in that Treaty. § 32. The Internal Government of the Free City of its inter- Cracow and its territory was to reside in a Senate tutionT ' consisting of Twelve Senators and a President. The^^{*°'°'' 38 IXCIDEXTS AND MODIFICATIONS OP Legislative Power was committed to the Senate and an Assembly of Representatives, the latter body hav- ing the right of controUing the administration by examining the accounts, voting the budget, and im- peaching the public functionaries, if suspected of peculation. The Peace of the City and the Police of the Roads was to be maintained by a civic mihtia. This Constitution was annexed to the Treaty, which placed it formally under the common guaranty of the Three Contracting Powers. It has been a matter of subsequent diplomatic discussion upon what principle the European Powers, who took part in the Congress of Vienna, acted in admitting this Treaty between the Three Powers to be inserted in the text of the Principal Principal Act of the Confess. A slight modification Act of the 1-11 /. 1 A • 1 Congress of was made m the language of the Article respectmg the City of Cracow and its territory as inserted in the Principal Act, namely, the City of Cracow is declared {est dedaree instead of seixo envisagee) to be for ever a free and independent and strictly neutral City under the protection of Russia, Austria and Prussia. With this exception, the language of the Article in the Triple Treaty and in the Act of the Congress is identical. It is known that the introduction of the r provisions of the Triple Treaty into the General Act of the Congress was objected to by Austria, as devoid of pohtical meaning, and as inconsistent with the in- tention of the Protectorate, and that the Emperor Francis reluctantly admitted its insertion in deference to the reiterated instances of the Emperor Alexander. It was subsequently mamtained on behalf of the View of Three Courts ^^ when their common intention to sun- the Three ,.,.,. -l Courts as press the mdependent existence of Cracow was an- to the Sup- 39 Despatch of Prince Met- 6 Nov. 1846. Martens, N. E. ternicli to Count Dietriclistein, Gen. T. X. p. 55. INTEKNATIONAL LIFE. 39 nounced to France and Great Britain in 1846, " that f^^^'""."^ 1 1 T 1 ■ Cracow m they had merely presented to the Congress of Vienna, 1846. for registration in the General Instrument termed the Principal Act of the Congress, the Convention which they had concluded with one another, and that the other Powers, who signed the Principal Act of the Congress, or the General Treaty, did no more than receive that combination, as the result of the direct negociations between the Three Courts, without inter- fering in that territorial arrangement to which they were strangers." France*', however, in reply, denied French that the Independent Powers, who signed the Prui- ^"'^' cipal Act, merely registered the decisions and acts of the Three Powers who were Parties to the Triple Treaty, and contended that the foundation of the Re- pubhc of Cracow was placed in the same rank with the stipulations which formed other States, established Eangdoms, recognised the Free Cities of Germany, created the Germanic Confederation ; and that the virtual insertion of the Triple Treaty textuaUy in the General Act was intended to give to the existence of the RepubHc of Cracow much stronger and more authentic guaranties ; and accordingly that aU the Powers, which were Parties to the Treaty of Vienna, had an incontestable right to take part in the deli- berations and decisions of which the Repubhc of Cracow might be the object. Great Britain ''^ to the British same effect, asserted, that, with whomsoever might ^®'^' have originated the plan of erecting Cracow and its territory into a Free and Independent State, that 40 Note of M. Guizot ad- 4' Despatch of Lord Palmer- dressed to Count Flahaut in reply ston to Lord Ponsonby, 23 Nov. to the Despatch of Prince Met- 1846. Martens, N. R. Gen. T. X. ternich, 4 Dec. 1846. Martens, p. no. N. R. Gen. T. X. p. 118. 40 INCIDENTS AND MODIFICATIONS OP plan was carried into effect by stipulations to which all the Powers were equally parties, and consequently it was not competent for three of those Powers by their own separate authority to undo that which was estabhshed by the common engagements of the whole. The Three Powers, on the other hand, conceived them- selves at liberty to modify or annul the Triple Treaty, and to stipulate other conditions by free and reci- procal agreement. They accordingly agreed, that, as the Protected State had violated the obHgation of neutrality imposed upon it as a condition of its exist- ence under the Triple Treaty, they were not merely at liberty, but were bound in self-defence to declare the Triple Treaty to be at an end ; and as the Protected State had destroyed by its own act the work which the Protecting Powers had founded, they were not bound to reestabhsh it, but might allow the state of Pos- session anterior to 1809 to revive. The Two Western Powers, on the contrary, protested formally against the suppression of the RepubHc of Cracow as at variance with the letter as well as with the spirit of the General Treaty of Vienna, and as in their opinion not warranted by any adequate necessity. Cracow § 33- It is uot easy to understand in what pecu- lonian^ liar circumstances certain distinguished publicists*^ islands, havc discovcrcd so wide a distinction between the Free and Independent City of Cracow, under the joint Protectorate of the Three Powers, and the Free and Independent State of the United Ionian Islands under the sole and exclusive Protection of Great Britain, as to declare that the former is to be regarded as a completely Sovereign State, whilst the latter has undergone a material abridgement both in 4- Martens, L. I. c. ii. § 20. Wheaton's Elements, Parti, c. 11. §13- INTERNATIONAL LIFE. 41 its Internal and External Sovereignty. As far as External Sovereignty was concerned, no European Power could place itself in connection with the State of Cracow, politically represented as it was under the General Treaty of Vienna by the Three Powers, except through the medium of one of the Three Courts : in a similar manner, it was only through one of the Three Courts that the State of Cracow could address itself to Foreign Governments ; and the triple Protectorate was as exclusive in the case of Cracow, as the single Protectorate in the case of the Ionian Islands. If a careful comparison is instituted between the condition of these protected Independ- ent States, and the condition of the Free City of Cracow, it will be seen that the Ionian Islands enjoy far more of the rights which pertain to an Independent State, than the Free City of Cracow. The latter State was by the Triple Treaty declared not to have the power to levy any custom duties ; whereas the Ionian Parliament has full power to impose custom duties upon imports and exports, as well as to levy other taxes. Cracow had neither a commercial flag by treaty nor commercial agents in foreign countries, whilst the Ionian Nation has both ; and the Lord High Commissioner, although he is nominated by the Protecting Power, does not exercise his au- thority according to the behests of the Protecting Power, but according to the Constitutional law of the Ionian States, being in fact not a British, but an Ionian authority. § 34. The Repubhc of Poglizza, in Dalmatia, is The extinct cited by Martens, Wheaton, Heffter, and Dr. PhU- pogiizza." limore as an existing instance of a Semi-Sovereign State under the protection of Austria. Poglizza, however, ceased to exist as an Independent State in 42 INCIDENTS AND MODIFICATIONS OF 1807, on the occupation of Dalmatia by the French armies. The origin of this Republic, the name of which signified " a small field," dated from a period antecedent to the Ottoman invasion of Europe. It consisted of twelve towns or villages, with a popu- lation of about 4000 souls, and a territory of about forty Italian miles in circumference, the capital of which was Gatta, where the YeHsbor, or Great Coun- cil, was held. Their first rights were granted to them by the Kings of Hungary, and the same were subse- quently confirmed to them by the RepubHc of St. Mark, to which they became tributary and furnished mercenary troops, obtaining from the Venetians cer- tain advantages in return. Upon the suppression of the Venetian State by the Emperor Napoleon, Po- glizza passed under the Protection of Austria, and con- tiniied in the enjoyment of its Independence, until it was destroyed amidst the conflicts between the Rus- sian forces under Siniavin and the French armies under Marmont^^. TheEepub- ^35. Ajidorrc is a small Republic, situated between the Pyrenees of Arriege in France and the Pyrenees of Catalonia in Spain. It has been classed by some writers amongst neutral Independent States, but its proper place is amongst protected Independent States. Its independence dates from the reign of the Emperor Louis le Debonnaire, who by a Charter issued in the year 80 1, and still preserved in the ArcMves of the Repubhc, constituted the People of Andorre an Independent State, with hberty to elect a Count as their Protector. They accordingly chose for their Protectors the neighbourmg Covmts of Foix. The Emperor Charlemagne had, prior to the Charter of 4i Memoires du Marcchal Due diner Wilkinson's Dalmatia and de Kaguse, III. p. 49. Sir Gar- Montenegro, II. p. 195. lie of An- INTEENATIONAL LIFE. 43 his son Louis le Deboimaire, granted the tithes of the six parishes, which make up the RepubHc of Andorre, to the See of Urgel in Catalonia, but he had granted at the same time to their inhabitants a distinct mih- tary organization. His grandson, Charles the Bald, disregarding the Charter of Louis le Debonnaire, issued, in the year 860, a Diploma, whereby the Sove- reignty over Andorre was assigned to the Bishops of Urgel. This wrongful act gave rise to a war between the Bishops of Urgel and the State of Andorre, which lasted for a period of four hundred years, and in which the Counts of Foix took part as Protectors of the Bepublic. Hostilities were at length brought to a close by a Treaty, under which the Bishops of Urgel and the Counts of Foix were recognised as joint Suzerains over Andorre. Tlois joint Suzerainty, however, has in course of time become converted into a joint Protectorate, and the Protectorate exercised by the Counts of Foix has devolved to the Imperial Successor of the French branch of the House of Bourbon**. The Emperor of the French and the Spanish Bishops of Urgel are now therefore joint Protectors of the Republic of Andorre, which is go- verned by a Domestic Executive, consisting of two Syndics, who are annually elected by a National Le- gislative Body, consisting of twenty-four Consuls or Delegates elected by the six parishes. The territory of Andorre is about thirty miles in length and twenty in breadth ; the population is estimated at about eight thousand ; and an armed force of full fifteen hundred men is always prepared to defend the independence of the Country*'. 44 The family of the Counts into the House of Bourbon, of Foix became absorbed into the 45 Historia de la Republica House of Beam, and the House of d'Andoi-ra. Barcelona, 1848. Beam in its turn was absorbed The Edinburgh Eeview, No. 230. 44 MODIFICATIONS OF INTERNATIONAL LIFE. TheEe- § 36. San Marino is an instance of an Independent San Ma- RepubKc Under the Protection of the Holy See, "^°- and surrounded, untU very recent times, by the do- minions of the Protecting Power. Tradition refers its origin to the fifth centiuy. The extent of its terri- tory and the number of its population are nearly equal to those of the Republic of Andorre, but it has not a like military organization, the armed force of the State consisting of only about eighty men. Its inde- pendence was for a short time in the last century suspended by Cardinal Alberoni, but it subsequently recovered its ancient liberties, and the Emperor Na- poleon formally recognised its Independence, when he entered the Papal Dominions in 1797. It is governed by a Domestic Executive, consisting of two Capitani Regenti, who are elected for six months by an Execu- tive Council of Twelve, the members of which are themselves popularly elected. This International Atom may fitly close the series of protected Inde- pendent States^. 46 This State is styled by Griinther, Europaisches Vblker- Ttalian writers, La Republiclietta. recht, Tom. I. c. i. § 19. CHAPTER III. NATIONAL STATE-SYSTEMS OF CHEISTENDOM. Single or United States — Personal Union of Independent States — Real Union of Independent States — Federal Union of Norway and Sweden — Diversity of Federal Unions — The United States of America — The Constitution of 1787 — The Articles of Confederation of 1778 — The Confederate States of America of 186 1 — The Argen- tine Confederation — A Single State decentralized — The Constitution of the Argentine State — The Argentine Provinces — The Swiss Con- federation of 1648 — The Helvetic Confederation of 1815 — The League of Sarnen of 1832 — The Swiss Confederation of 1848 — Analogy between the Swiss Confederation and the United States of America — Origin of the Germanic Confederation — Federal Act of 1 8 1 5 — Final Act of 1820 — The Ordinary Assembly of the Diet — The Plenum or Full' Chapter of the Diet — Permanent Character of the Germanic Confederation. ^37. A Nation may be either a single Independent Single or State, or an Independent System of States^ vmited states, together by a federal compact, the conditions of which are susceptible of infinite variations. Thus a System of States may be federally united under an hereditary prince, or under an elective President, or under a representative Council, and in each of these cases the National Unity of the System may be as complete as in the case of a single Independent State. It is of importance, however, not to confound a Political Body of States, incorporated together Jure Imperii under a common Sovereign Prince, with a Federal System of States^ united together Jure Societatis, which has been, as such, the subject of International recognition. I Puffendorf, L. VII. c. 5. § 1 2. uno loco loquitur, neque tamen ^ Sic etiam accidere potest, ut singulse desinant statum perfectoe plures civitates arctissimo inter Civitatis retinere. Grotius, L. I. se foedere colligentur et faciant c. 3. § 7. a-vcTTrifia quoddam, ut Strabo non 46 NATIONAL STATE-SYSTEMS The internal constitution of a Political Body of States is altogether ignored by the Law of Nations, whereas the internal organization of a Federal System of States is the result of an International Compact ; and wliilst the external relations of the former Body towards Foreign Nations are of a normal kind, and are governed by the Common Law of Nations, the external relations of the latter System are of an exceptional character, and are the creatures altogether of Conventional Law. Personal § 38. Two or more Independent States maybe con- Sdepend- ncctcd together by the link of a common Sovereign ent states. Princc Under the Civil Law of the respective States. Such a connection has no International significance, inasmuch as each State retains its separate National Character. Where such a connection is of an accidental and temporary character, it has been termed by pub- Heists a Personal Union ; where it is of a necessary and permanent character, it has been designated a Real Union. This classification, however, is open to objection, seeing that in both cases the person of the Sovereign is the only link which connects the States ; and as there is nothing in the nature of these Unions which implies Reality in an International sense, it would seem preferable to define such Unions in all cases as Personal Unions, and to distingTiish them, according to their essential difference, into temporary Great Bri- Qjidi permanent Unions^ Thus the connection of the Hanover. United Kingdom of Great Britain and Ireland with the Kingdom of Hanover by the link of a common Sovereign Prince during the reign of five successive 3 Kliiber, Tom. I. § 27. in a tatis (systema civitatum fcsdera- note upon States united under tarum) (2) vel imperii (sub the same Sovereign, says, Unio eodem imperante). HaBC est vel civitatum, sive perpetua sit, sive personalis vel realis. temporaria, fit jure (i) vel socie- OF CHRISTENDOM. 47 monarchs of the House of Hanover, was a Personal Union of an accidental kind, depending upon the coin- cidence of the two Crowns devolving upon one and the same person under the CivU Law of Succession in either Kingdom ; whilst the connection of the King- dom of Hungary with the Germanic States of the House of Hapsburg-Lorraine, under one and the same SovereigTi Prince, is a Personal Union of a 'permane^it kind, inasmuch as the Act of Settlement of the Crown of Hungary (anno 1723), by extending the Order of Succession to the female descendants of Rodolph of Hapsburg, has made the Law of Succession in Hun- gary identical with the Law of Sviccession m the Ger- Hungary manic States of the House of Hapsburg-Lorraine, so Austrian that both Crowns devolve inseparably upon one g4™a*°'° and the same person. But in either case the Per- sonal Union of the two Crowns has no B,eal Inter- national significance. The Hungarian Nation does not necessarily follow in peace and war the fortunes of the Germanic States of the House of Hapsburg-Lor- raine, and the Emperor of Austria may enter into an international compact, to which he is not a party as King of Hungary. ^39. There is another kind of Union of Inde- Real pendent States under one and the same Sovereign indTpend- Prince, which has an International significance, and ™* states. may deserve, in a Treatise on the Law of Nations, to be termed a Real Union, in contradistinction to the Personal Unions which have just been noticed. Thus, the States which are under the sceptre of the Head of the House of Hapsburg-Lorraine may be divided into Germanic and non-Germanic States. The Ger- manic States form part of the territory of the Ger- manic Confederation ; they at the same time form part of the Austrian Empire, and their twofold Na- tional character has been the subject of International 48 NATIONAL STATE-SYSTEMS recognition. In a similar manner the Germanic States of the Head of the House of Hohenzollem form part of the territory of the Germanic Confe- deration, and at the same time form part of the Prussian Monarchy. The Duchies of Holstein and Lauenburg are, in an analogous manner on the one hand States of the Germanic Confederation, and on the other hand parts of the Danish Monarchy. German publicists have accordingly adopted a special term to distinguish in such cases the Whole or Entire Independent State. Thus the Prussian Monarchy, as distinguished from the Germanic and non-Ger- Gesamm- mauic States which compose it, is styled a Gesamm- Btaat or x ' j Whole- staat, or Whole-State. The King of Prussia, for '"''''''' instance, may enter into treaty- engagements in behalf of the GesammstacU, or entire Prussian Monarchy ; or on behalf of the Germanic portion of it, or on behalf of the non-Germanic portion of it. So like- wise the King of Denmark may enter into treaty- engagements on behalf of the Gesammstaat, or entire Danish Monarchy, which includes the two Germanic Duchies, or on behalf of the Germanic Duchies alone, or on behalf of the Danish Provinces alone. These very comphcated conditions of International Life are pectdiar to certain States which are members of the Germanic Confederation ; the Constitution of which is recognised in the Final Act of the Congress of Vienna. The Kingdom of Holland suppHes an in- stance of either kind of Union with a State of that Confederation. There is a Real Union between the Kingdom of Holland and the Duchy of Limburg, whilst the person of the Sovereign is the only link which unites that Kingdom to the Grand Duchy of Luxemburg. Limbtu'g forms part of the Dutch Mon- archy, whilst Luxemburg is as distinct from Holland, as Hanover was from Great Britain during the time OF CHRISTENDOM. 49 wlien botli States were subject to a common Sovereign Prince. 5 40. The Union of tlie Kingdom of Norway and Federal the Kingdom of Sweden comes under difiPerent con- Norway siderations of Public Law. The kiagdom of Norway ^"^ ^^^' had been politically united with the Kingdom of Sweden and with the kingdom of Denmark since the Union of Calmar (anno 1397 '). That Union was dis- solved de facto in the early part of the sixteenth century, when GustaAois Vasa reestablished the poli- tical Independence of Sweden, and founded a separate dynasty (anno 1523). The Independence of Sweden was formally recognised by Denmark at the peace of Stettin (anno 1570). Norway had meanwhile under- gone a political change, and had become a province of Denmark (anno 1536), when its Senate was sup- pressed, and its Estates ceased to take part in the election of its Kings. Norway and Denmark thence- forth formed a single Independent State for aU Inter- national purposes; the King of Denmark being re- cognised Internationally as King of Denmark and Norway. Such was the condition of Norway until the last year of the War of Liberation, when the Treaty of King of Denmark by the Treaty of KieP, (14 Jan. j^n''i8{4. 1 8 14,) to wliich Great Britain and Russia were also parties, ceded all his rights of Sovereignty over the kingdom of Norway to the King of Sweden, so " that Norway and its Dependencies should be a kingdom united to that of Sweden." This International set- * The monarchy in each king- elected by the common accord dom had been an elective mon- of the Senators, and the depu- archy, prior to the Union of tiesofthe three Kingdoms. Koch, Calmar. Under theAct of Union Tableau des E^volutions, T. I. the United monarchy was con- p. 274. stituted an elective monarchy, 5 Martens, N.E. I. p. 666. and the monarch was to be PAET I. E 50 XATIONAL STATE-SYSTEMS tlement was at first repudiated by the Norwegian people, but it was ultimately carried into effect by a Convention® concluded at Moss, (14 August 18 14,) between tbe Kang of Sweden and the Norwegian Government. The Constitutional relations between the two kingdoms were subsequently settled by an Act', drawn up in common by the Diet of Norway and the Diet of Sweden ; by which it was provided that the kingdom of Norway should form a Free and Independent kingdom, united to Sweden under the sceptre of one and the same monarch, each kingdom retaiuicig its own Civil system, but both kingdoms having one and the same International system. Ac- cordingly the Bang has fuU power on behalf of both kingdoms to declare war, make peace, conclude al- Hances, and accredit and receive Ministers Plenipo- tentiary, and has in aU matters of war and peace the aid of an extraordinary CouncU of State, composed of Norwegians and Swedes in common. Meanwhile, each kingdom has its special Commercial Flag, and since 1844 has a special ensign for its mihtary marine, but both such ensigns are acknowledged by Foreign Nations as of identical International import. The Union of Norway and Sweden, if carefally examined, will be found to be a Federal Union based upon a compact between the Norwegian and Swedish Nations. It is classed however by Wheaton under the head of personal Unions, and Dr. Phillimore adopts the same order of classification, and cites Norway and Sweden by the side of Great Britain and Hanover, and by the side of Prussia and Neuchatel, as affording an example of a personal Union. Kltiber, on the other 6 Martens, N. R. II. p. 62. stitutionels entre les deux Roy- ": Acte dres36 en commun par la aumes s\ga€ S, Christiania le 3 1 Dic^te de Norwege et la Diete de Juillet at S, Stockholm le 6 Aout Suede pour fixer lea rapports con- 1815. Martens, N.R. II. p. 608. OF CHRISTENDOM. 51 hand, and Heffiter' class the Union of Norway and Sweden under the head of Real Unions. Kliiber ranks it in the same category with the Union of Poland and Russia, which was recognised in Art. I. of the Final Act' of the Congress of Vienna, and with the Union of the two Sicihes Tinder the Royal Proclamation of 12 Dec. 1816", in pursuance of a previous recognition of the Title of Ferdinard IV, as king of the Two Sicihes, in Art. CIV. of the Final Act. The true characteristic of a Personal Union seems to have been pointed out by Grotius, when he says, that upon the extinction of the reigning house the empire reverts separately to each people^". He might have added, that a like separation of the King- doms would ensue, if the succession to the respective Crowns shoidd diverge to different members of the reigning House. Stich was the result in the instance of Great Britain and Hanover, upon the death of King WilHam IV, when the British Crown, by virtue of British Law, passed to the heir general, and the Hanoverian Crown, by virtue of Hanoverian Law, remained with the heir male of George III. Such a result however cannot arise in the case of Norway and Sweden, as there is an express provision in the Constitutional Act for maintaining the United Mon- archy by the election of a new Common Dynasty, if the reigning Prince should at any time be without presumptive heirs, or if the two thrones shotdd be- come actually vacant. It is apparent, therefore, that the Union of Sweden and Norway is very different from a Personal Union. On the other hand, it is not 7 Kliiber, § 27. Heffter, § 26. '° Grotius, L. I. c. 3. § 7. 2. 8 Martens, N. R. torn. II. p. Extincta domo regnatrice, impe- 383. rium ad quemque populum seor- ? Ibid. torn. IV. p. 275. sim revertitur. E 2 52 NATIONAL STATE-SYSTEMS identical with the Real Union which exists between the Independent States which compose a Gesamm- staat, as Norway has not any International existence apart from Sweden, whereas the Independent States, which compose a Gesammstaat, enjoy both a separate and a common International existence. Diversity ^41. The Union of Norway and Sweden is perhaps Unions.'^^ ahnost a solitary instance of a Federal Union under an hereditary Sovereign Priace. The United States of America and the Argentine ^^ Confederation are in- stances of Federal Unions under an Elective Pre- sident. In the former case, the President is elected for four years, and is immediately reeligible ; in the latter case, he is elected for six years, and cannot be elected a second time until an intervening period of six years has elapsed. The Confederate States of America (anno 1861) are constituted after the model of the United States, with the exception that the Pre- sident is elected for six years and is not reehgible. The Helvetic Confederation, on the other hand, under the Constitution of 1 8 1 5 '^ was an instance of a Federal Union under the direction of a Representative Coun- cil ; under its present Constitution, which bears date 12 Sept. 1848, it ranks in the same class Avith the United States of America, but the President is elected for one year only, and is not reehgible until after an interval of one year'^ Both the Argentine and the Swiss Confederations, although so styled, are strictly speaking Federal Unions equally with the United States of America and the kingdoms of Norway and Sweden. The Germanic Confederation, on the other hand, although it is an Independent System of States " So called from the Eio de '3 Constitution Federate pour la Plata, which intersects it. la Conft^d^ration Suisse, article '2 Martens, N, E. IV. p. 173. 86. Fribourg en Suisse, 1856. OF CHEISTBNDOM. • 53 under the direction of a Representative Council, dif- fers so essentially from aU other Systems of identical import in the circumstance that several of the States of the Confederation enjoy a separate NationaHty, notwithstanding that they participate in a common Germanic NationaHty, that it may be regarded as a distinct Species, which deserves a separate category. § 42. A Confederation of four Colonies, under the The title of the United Colonies of New England, (anno gtate^g of 1643,) was the first germ of Union amongst the Bri- ^'"®"''*- tish Settlements in North America. The subsequent war between Great Britain and France led to a more extensive Confederacy, (anno 1754,) which was to embrace aU the then existing British Colonies from New Hampshire to Georgia ; but it was at that time supposed that a Federal Union of the Colonies was impracticable. Subsequent disputes with the British government led to a more close association amongst thirteen Colonies, which ultimately declared them- selves to be independent of the Mother Covmtry, and agreed to certain " Articles of Confederation and per- Articles of petual Union" (15 Nov. 1777^*). This Confederacy tion, 15 was directed in its external relations by a Congress "'^°^' '^"" composed of Delegates from each State, and by the ninth of the Articles, subsequently agreed upon at Philadelphia, on 9th July, 1778^', it was provided, that the United States in Congress assembled should have the sole and exclusive right and power of deter- mining on peace and war, except in cases''' mentioned in the ninth article ; of sending and receiving ambas- ' > The American's Own Book, a State was actually invaded by or the Constitutions of the seve- enemies, or the danger of inva- ral States in the Union, by J. E. sion was so imminent, as not to -Bigelo-w. New York, 1848. admit of delay, until the United '5 Ibid. States in Congress assembled i^ Cases of emergency, where could bo consulted. 54 kational state-systems sadors ; of entering into treaties and alliances ; of establishing rules for deciding in aU cases what cap- tures on land or water should be legal ; and of ap- pointing Courts for the trial of piracies and felonies committed on the high seas. The Congress was thus charged with executive functions on behalf of aU the United States in International matters, and upon the recognition of the Independence of the Confede- ration by Foreign Powers, the Congress took its place as a National Authority, and was acknowledged to be the representative of the United States of North America in their intercourse with other Nations. Constitu- 1 43. The Confederation of 1777 gave place to the j'°8^° more perfect Union of 1787''', of which the distin- guishing feature was the consolidation of the Execu- tive Power in the hands of a President, who was to be chosen by electors appointed by each State. The Constitutional Act, agreed to in Congress on 28th Sept. 1787, and subsequently ratified by State-Con- ventions held in . each of the thirteen States of the Union, declared that the object of the people of the United States is " to form a more perfect union, estabhsh justice, insure domestic tranquilhty, provide for the common defence, promote the general welfare, and secure the blessings of liberty to themselves and their posterity." The Congress of the United States was henceforth to consist of a Senate and a House of Kepresentatives, and it has power to provide, amongst other things, for the common defence and general welfare of the United States ; to regulate commerce with Foreign Nations ; to define and punish piracies and felonies committed on the high seas, and offences against the Law of Nations ; to declare war, grant letters of marqtie and reprisal, and make rules con- '7 Martens, Kecueil, T. iv. p. 288. The American's Own Book, p. 9. or CHRISTENDOM. 55 cernmg captures on land and water ; to raise and support armies ; to provide and maintain a navy ; to make rules for the government and regulation of the land and naval forces ; to provide for calling forth the militia to execute the Laws of the Union ; to suppress insurrections and repel invasions. The President, on the other hand, is the organ of the Union in its inter- course with Foreign Powers. He has authority to make treaties and to appoint Ambassadors and Con- suls ; and although he is bound on such occasions to take the advice and obtain the consent of the Senate, this is a regulation of domestic poHcy with which Fo- reign Nations are not concerned, as they can only com- municate with the President. No State of the Union can enter into any treaty, alliance, or confederation, nor can any State without the consent of the Congress lay any duty on tonnage, keep troops or ships of war in time of peace, enter into any agreement or compact with another State of the Union or with a Foreign Power, or engage in war unless actually invaded, or in such imminent danger as will not admit of delay. § 44. It had been provided, by the Second of the Articles of Articles of Confederation of 1778, that each State tion of was to retain its Sovereignty, Freedom, and Inde- '''^ pendence, and every power, jurisdiction, and right which was not expressly delegated to the United States in Congress assembled. With regard to the Sove- reignty of each State, it is not within the scope of a treatise on the Law of Nations to examine in what re- spects and to what extent that Sovereignty has been controlled or modified by the subsequent Constitution of 1787 ; but with regard to the Independence of the several States it may be observed, that the exercise of all those functions which characterise an Independent State, has been delegated by the respective States to the Federal Government, and the National character 56 NATIONAL STATE-SYSTEMS • of each State is so far merged in the National cha- racter of the Union. Hence the Federal Government alone maintains iaternational relations with Foreign Powers, and the Federal Union alone can acqiiire terri- tory either by occupation or by cession, there being an express provision in the Constitution of the Union that new States may be admitted by Congress into the Union. The Federal Government has power to form and erect into a New State any territory which Cession of the Federal Union may acquire. Thus Louisiana was and ofae cedcd by France to the United States imder the Treaty Fioridaa. of 1 803, and the Floridas were similarly ceded by Spain in 1809 ; and the ceded territory in each case was formed into a new State, and admitted m that charac- ter into the Union. On the other hand, where an Independent State has joined the Union, a treaty has not been required as a condition precedent to its ad- mission into the Union. Thus Texas had been recog- nised as an Independent State by the United States, as well as by other Foreign Powers, antecedently to 1844. In that year a Treaty, previously negotiated between Texas and the United States for the admis- sion of Texas into the Union, did not receive the ratification of the American Senate, and it accordingly remained inoperative". The Congress, however, re- solved that the territory of Texas might be erected into a State with a Repubhcan Form of Government, and thereupon be admitted as a new State into the Union, in accordance with the Tliird Section of the Fourth Article of the Constitution^®. The Con- ^45. On the 24 Dec. i860, the State of South statea*of Carolina withdrew from the Federal Union on the 1861. '7 Wheatou's Elements, Sixth New States iuto the Union as it Edition, p. 78. may think proper, in whatever "* Under this article the Con- manner the territory comprising grass has power only limited by those New States may have been its discretion to admit as many acquired. OF CHEISTENDOM. 57 ground that fourteen of the States of the Union had deliberately refused for many years past to fulfil their constitutional obligations under the Fourth Article ^^ of the Constitution of the United States (anno 1787). The people of South Carolina thereupon by their Delegates in Convention assembled, issued a Declara- tion that the State of South Carolina " had resumed its position among the Nations of the world as a separate and Independent State, with full power to levy war, conclude peace, contract alHances, establish Commerce, and do all other acts and things which Independent States may of right do." Five other States followed almost immediately the example of South Carolina, and on the 8th February, 1861, a Convention of De- legates from the Seceding States assembled at Mont- gomery in the State of Alabama ; and adopted a Federal Constitution, under the title of " the Consti- tution for the Provisional Government of the Con- federate States of America." The Preamble is to this effect : " We the Deputies of the Sovereign Inde- pendent States of South Carohna, Georgia, Florida, Alabama, Mississippi and Louisiana, hereby, iii behalf of the States, ordam and estabhsh this Constitution for the Provisional Government of the same, to con- tinue one year from the inauguration of the Pre- sident, and untU a permanent Constitution or Con- federation be put into operation. Mr. Jefferson Davis of Mississippi was on the same day elected President, and Mr. A. H. Stephens of Georgia Vice-President of the Southern Confederacy. The President was in- augurated on the 1 8th Feb. 186 1. The State of Texas had meanwhile elected Delegates to join the ■9 No person held to service charged from such service or la- or labour in one State under the hour, but shall be delivered up Laws thereof, escaping into an- on claim of the party to whom other, shall, in consequence of any such service or labour may be law or regulation therein, be dis- due. Article IV. s. 11. § 3. 58 NATIONAL STATE-SYSTEMS Southern Congress ; so that on the 4th March, 1 86 1, when Mr. Lincohi was inaugurated at Wash- ington in succession to Mr. Buchanan as President of the United States, a Southern Confederacy of Seven States, organized for international purposes ahnost after the model of the Federal Union, from which they had seceded, was assembled in Congress at Montgomery in the State of Alabama. A Constitu- tion of the Confederate States has been since adopted, under which the Confederacy is empowered to acquire territory. The Ar- § 46. The Spanish Provinces on the banks of the Confe'dera- ^^'^ *^® ^^ Plata, in South America, had previously to *■'<»>• their separation from the Mother Country been under the Government of a Colonial Viceroy. Upon the successful issue of the Insurrection against Spain and the Proclamation of the Sovereignty of the Argentine People, the revolted Provinces constituted themselves a KepubHc, under the title of the Argentine Confede- ration. Discord and civil war subsequently broke out between Buenos Ayres and the other Provinces, and, after a contest of fourteen years' duration, a Federal Constitution was drawn up in May, 1853, to which thirteen of the Provinces adhered, whilst Bue- nos Ayres preferred to stand aloof, and to frame for herself a Constitution, as a separate State ^^ The ex- isting Argentine Confederation therefore dates from the year 1853, when the Representatives of the People of the Confederation assembled in General Congress, decreed and established a Constitution, as recited in the Preamble, with a view to constitute a National Union amongst themselves, to consohdate internal peace, to provide for the common defence, ^° By a Treaty signed Nov. 10, federation. Provision had been 1859, Buenos Ayres has declared made in the Constitution of 1853 lierself to be once more an inte- for the admission of Buenos gral part of the Argentine Con- Ayres. OF CHRISTENDOM. 59 and to secure the liberty of all the inhabitants of the Argentine Soil. The thirteen Provinces, which com- posed at such time the Argentine State, are Cordova, Catamarca, Corrientes, Entre-Eios, Jujuy, Mendoza, Rioja, Salta, Santiago, San Juan, Santa ¥6, San Luis, and Tuctiman. ^47. The Argentiae Confederation has many fea- The Ar- tures in common with the United States of North confeTera- America ; but it has remarkable features of difference, ^^g^gj J^"' which are attributable to the fact, that the starting deoentrai- point of the Argentine Confederation was diametri- cally opposite to that of the United States of North America, the former Confederation resulting from the Decentrahsation of a Single State ^\ whilst the latter arose out of the Union of several States, which had been and might have continued to exist singly as Independent States. The Argentine Constitution, ac- cordingly, in regard to the external relations of the Confederation, has only confirmed the original Unity of the Argentine State, at the same time that it has alto- gether decentrahsed its Internal Government, and has resolved it into a. system of Confederate Provinces, which severally possess all the powers of Sovereignty which are not delegated by the Constitution to the Federal Government. ^^ The National Unity, how- ever, of the System, as regards Foreign Powers, is not thereby impaired, and the latter consequently can, under no pretext whatever, entertain direct Inter- national Relations with the Provinces without assail- ^' We find accordingly that the Argentine soil, la liberie pour the Argentine Confederation is tous les homines du monde qui composed of Provinces and not of voudraient hahiter lesol Argentin. States, and that the object of the La Constitution de la Conf^dera- Confederation is declared to be, tion Argentine. Bruxelles, 1856. amongst other things, to pro- ^^ Article 10 1. Les Provinces vide for the common defence, and conservent tout le pouvoir non maintain the liberty of all persons deldgue par cette constitution au who may be disposed to inhabit gouvernement federal. 60 NATIONA). STATE-SYSTEMS ing the Nationality of the Argentine State, and violating the Independence of the Argentine Na- tion ^^. The Con- ^48. The Executive Power of the Argentine Na- stitutionof . ^ ^. -r, . n 1 • • 1 n rrn the Argen- tion IS vested m a President, who is entitled " ihe tate. president of the Argentine Confederation," and the direction of the International Relations of the Confe- deration are vested in him conjointly with the Senate. He declares war and peace, nominates and recalls Am- bassadors and Consuls, concludes and signs aH treaties of peace, commerce, navigation, alliance, boundaries and neutrality, all Concordats and other Treaties which maj be necessary to maintain friendly relations with Foreign Powers, whose Ministers he receives, and to whose Consuls he grants the Exequatur. The Presi- dent exercises these latter functions subject to the approval of a Congress, which consists of two Cham- bers, one composed of " Deputies of the Nation,'' and the other of " Senators of the Provinces and of the Ca- pital." The Chamber of Deputies consists of Repre- sentatives directly elected by the People of the Provinces and of the Capital, considered for this pur- pose as electoral districts of a single State, in the proportion of one deputy for every 20,000 inhabitants. Each deputy may sit for four years, and he is then reeligible, but half the members of the Chamber are renewed every two years. The Senate is composed of two Senators from each Provmce and two from the Capital ; each Senator may sit for nine years, and is immediately reeUgible, but a tliird of the Senate is renewed every three years. The approval of the Congress, which is required by the Constitution to give perfect validity to the acts of the President, is an 23 The Provinces may coucludo lie Works, and the Administration mutual Conventions with one an- of Justice, subject to the sanction otheruponmattersof Police, Pub- of the Federal Congress. OF CHRISTENDOM. 61 arrangement of domestic policy, analogous to the arrangements under which the approval of the British Parliament is required by the Constitution to enable the Crown to give effect to treaties of commerce con- cluded with Foreign Powers. §49. The Provinces which compose the Argentine The Ar- State are expressly prohibited by the Constitution pro-rinceB. from exercising any of the powers which are dele- gated to the Confederation. They may not conclude any treaties of a political character, or pass any laws affecting commerce or navigation, or estabhsh any Custom Houses, or levy any troops, or arm any ships of war, except on occasions of sudden invasion when delay is inadmissible, and in which case they must make an immediate report to the Federal Govern- ment ; nor may they nominate abroad, or receive at home. Foreign Agents. The Provincial Institutions are cast in a Repubhcan mould, and each Province elects its own Governor, but the Governors of the Provinces upon their election become not merely local Functionaries, but are the constituted Agents of the Federal Government in enforcing the Laws of the Confederation. No ProAonce is allowed by the Con- stitution to declare or make war upon another Pro- vince, and a Supreme Court of Justice, modelled after that of the North American Union, has authority to hear and redress all matters and complaints between Province and Province. § 50. The Swiss Confederation, in the earhest form The Swiss in which its Independence was recognised by a Pubhc tion'^^f ^™' Act of the European Powers (amio 1648), consisted of '^48. thirteen Cantons, Glaris, Schwytz, Uri, Zug, Unter- wald, and Appen^eU, the political Constitutions of which were democratic, and BMe, Fribourg, Berne, Lucerne, Ziuich, Schaffhouse and Soleure, which had 62 NATIONAL STATE-SYSTEMS Constitutions more or less aristocratic. The Confe- deration underwent various vicissitudes during the wars of the French Revolution of 1789, and six other Cantons, some of them being districts which had separated from existing Cantons, were received into the Confederation, namely, St. Gall, Grisons, Argovie, Thurgovie, Tessin and Vaud. In 1803, Napoleon, then First Consul, imposed upon the Confederation, in the character of Mediator between the partisans of a Central State and those of a Federal State, a new Constitution, imder the title of an " Act of Mediation," which intrusted the interests of the Confederation to a Federal Diet, which was to meet at Fribomrg, Berne, Soleure, BMe, Zurich or Lucerne, year by year, and in each year the Burgomaster of the directing Canton was to be the Landammann of Switzerland, charged with the Presidence of the Diet and with all communications with Foreign Powers. The Act of Mediation was superseded in 18 14 by an aUiance of a Federal Character between the nineteen Cantons^, and in the following year three new Cantons, Neu- chatel, Geneva, and Valais, were admitted into the Confederation, so that the new Act of Confederation, concluded 7th August, 18 15, embraced twenty-two Cantons^. It was this new Confederation, which SyO- ceded formally to the territorial arrangements of the Congress of Vienna on 12 August, 181 5 ; and, in con- sideration of its accession, the perpetual neutrality of Switzerland and the inviolabihty of its soil was recog- nised and guaranteed by the Powers, which signed the Final Act of the Congress. TheHei- ^51- The Helvetic Confederation of 1815 was an f.^erafa°on Uuion of a closcr kind than the early Federal Pact, pf >8i5- which had preceded the Constitution under the Act -4 Martens, N. R. II. p. 68. -5 Martens, N. R. TV. p. 173. OF CHRISTENDOM. 63 of Mediation. Its object was declared to be the pre- servation of the freedom, independence and security against foreign assault and of the domestic order and tranquilhty of the twenty-two Cantons. The Cantons guaranteed reciprocally to one another their respective pohtical Constitutions and their territorial Possessions. The Confederation had a common army, composed of contingents of men from each Canton, and a common mihtary chest, supphed by duties levied on the impor- tation of foreign merchandise, and collected by the frontier Cantons. The Diet consisted of one deputy from each Canton voting according to instructions, and it assembled at Berne, Zurich, or Lucerne alter- nately. The direction of the affairs of the Confede- ration, when the Diet was not in session, was con- fided to the Canton in which it ought to assemble, and the duties of Directing Canton ( Yorort) accord- The Vor- ingly devolved every alternate two years upon the "gjyng'^'' Protestant Canton of Zurich and the Roman Ca-^^°*™- thohc Cantons of Berne and Lucerne. All the func- tions which had belonged to the Directing Author- ity of the Confederation before 1798, were, under the new Constitution, continued to the Directing Canton. The Diet had the prerogative of declaring war and concluding treaties of peace, alHance, and commerce with Foreign States. It provided for the internal and external security of the Confedera- tion, directed the operations and appointed the Com- manders of the Federal Army, and nominated the Ministers accredited to Foreign Powers. In case of internal or external danger, each Canton had the right of demanding the aid of the other Cantons, in which case notice was to be given immediately to the Directing Canton, in order that the Diet might be called together to provide the necessary measures of security. Under the Federal Compact prior to 1798, 64 NATIONAL STATE-SYSTEMS the Cantons might make separate treaties with olie another or with Foreign Powers. Under the Confe- deration of 1815, the individual Cantons were pre- cluded from concluding any alliance which might be prejudicial (nachtheilige) to the General Confedera- tion, or to the right of the other Cantons. The ^52. The French Kevolution of 1830 led to various s^men^. ° chauges in the Internal Constitutions of the different Cantons, and a plan for the revision of the Federal Pact of 1 8 1 5 was drawn up by a Committee of the Diet in 1832. The object of the revision was mainly to assign to the Federal Authorities more of the attributes of a Central Government than they had hitherto possessed ; but the scheme was vigorously opposed by Seven Cantons, namely, Schwytz, Uri, Unterwald, BMe, Tessin, Neuchatel and Yalais. These Cantons united themselves together in a separate Confederation, called the League of Sarnen. The Diet of 1833 took the necessary measures for dis- solving the League of Sarnen, and for compelling the seceding Cantons to send Deputies to the National Diet. The question of the revision of the Federal Pact was renewed in 1834, but unsuccessfolly. In 1846 a separate armed League of the Seven Catholic The Son- Cautous was formed, under the title of Sonderbund, which was in fact an armed Coixfederation within the Confederation. This association being at variance with the Sixth Article of the Federal Pact, it was resolved by the Diet that it should be put down by force of arms, which was accordingly effected. The eventful political changes, which convulsed Europe in 1848, contributed to bring about a change in that year in the Constitution of the Confederation, whereby it more nearly approximates at present to -the model of the Federal Union of the North Ame- xica,n States. derbund. OF CHRIS'n5ND0M. 65 ^53. The existing Constitution of the Swiss Con- The Swiss federation was voted by the Diet, on 12 th September, tionof 1848. The Confederation consists, as under the set- '^*^' tlement of 181 5, of twenty- two Cantons ; but of these BsLle is divided into BMe-town and B41e-country ; Underwalden into Upper and Lower Underwalden ; and Appenzell into Outer and Inner Rhodes. The object of the Confederation is declared to be to secure the Independence of the Country (la patrie) against foreign assault, to maintain tranquillity and order in the Interior ; to protect the hberty and rights of the Confederates ; and to promote their common pros- perity. The Cantons are respectively Sovereign in aU matters ia which their Sovereignty has not been delegated to the Federal Power. The Cantons are forbidden to enter into any private alhance or any treaty of a political character with one another, but they may conclude with one another Conventions upon matters of Legislation, Administration, and Jus- tice, subject to the approval of the Federal Authority. The Confederation alone has the right of declaring war and concluding peace, as weU as of making al- liances and treaties A¥ith Foreign Powers, and more especially treaties of commerce, and of regulating the custom-duties on foreign imports. The Cantons retain the right of concluding with Foreign States conven- tions on matters of Pohtical Economy and relations of Neighbourhood and Pohce ; but these conventions must contain nothing prejudicial to the Confederation, or to the rights of the Cantons, and aU official relations between the Cantons and Foreign Governments are carried on through the medium of the Federal Council. The Confederation has also power to expel from its territory strangers who compromise either the In- ternal or the External security of Switzerland. The PART I. F 66 NATIONAL STAT?>.SYSTEiI.S The Fede- Federal Authorities consist of a Federal Council and biy. ^^^™ a Federal Assembly ; the latter consisting of two Sections or Councils, a National Council, and a Council of States. The National Council is com- posed of Deputies of the Swiss People, in the pro- portion of one Deputy for every 20,000 citizens, and every natural bom Swiss of the age of twenty years complete, unless under some legal disabihty, has a right to vote for members of the National Council ; and, if a layman, is ehgible as a Deputy. The Na- tional CouncO. is elected for three years, and the whole body is renewable at each election. The CouncU of States, on the other hand, is composed of forty-four Deputies of Cantons, two Deputies being nominated by each Canton ; and in the case of the divided Cantons, one Deputy is nominated by each Half-Canton. Each Council chooses for each Session a President and a Vice-President from its own body. These officers are not reehgible. One of the most important functions of the Federal Assembly is to select the Federal CouncU, which is the Supreme Executive body, and the directing authority of the Confederation. For this purpose the two Coimcils meet in one body, and elect seven persons, who must be Swiss Citizens, qualified to be members of the National Council, and who upon their election be- The Fede- comc mcmbcrs of the Federal Council for three years, rai Coun- ^^^ dunng such time are precluded from any other employment. The Federal Council must be renewed entirely upon each renewal of the National Council The President of the Federal Council is the President of the Confederation, and he is selected, as well as the Vice-President of the Federal Council, from amongst the seven members of the Federal Coxmcil by the National Assembly. The President of the Confede- OF CHRISTENDOM. 67 ration holds office for one year, and is not reeligible. Four members must be present to enable the Federal CouncU to dehberate. The Federal Council nomi- nates to Foreign Missions, examines all treaties con- cluded either amongst the Cantons or with Foreign States, and approves them, if it thinks fit. It watches over the interests of the Confederation abroad, and more particularly over its International relations ; and is in general charged with the superintendence of the external relations of the Confederation, and with the maintenance of its Independence and its Neutrality. § 54. It will be seen that the existing Constitution Analogy of the Swiss Confederation bears a very close resem- the^m^ss blance to the Federal Union of the North American Confedera- tion and States, and to the Federal Union of the Argentine the United Provinces. Each of these Confederations is for all America. International purposes a single Independent State. Each of them is only known to Foreign Powers through the medium of the Supreme Federal Go- vernment, which for all external purposes represents the Nationality of the entire Federal Body. A Fede- ration of this kind is essentially a very different body from what is ordinarily understood by a Confedera- tion of States. Heffter^^ accordingly, and other Ger- man Jiuists, have employed the term Bundesstaat, Bunde- or Federative State, to denote an Union of States, Federative which is formed on a basis of equal rights, and rests ^'*'®' upon a compact of Pubhc Law (foedus), under which the individual States are merged for aU International purposes in the Union. The term Confederation of States, (Staaten-Bund,) according to these writers, is staaten properly apphcable to an association of Independent confe'dera- States, each member whereof severally retains its|°°g°^ 25 Heffter, § 20. F 2 G8 NATIONAL STATE-SYSTEJIS own Nationality, whilst it participates at the same time in the common Nationahty of the Confedera- tion. The Germanic Confederation is an association of tliis latter character. It is composed of Inde- pendent States, which have substituted for their ordinary rights and duties in relation to one another under the Law of Nations, special rights and duties under the Articles of Confederation. They at the same time severally retain, in regard to non-Ger- manic Powers, all their rights and duties under the Law of Nations ; whilst they have collectively acquired in relation to those Powers special rights and duties, as a Community of States, by virtue of the Inter- national recognition of the Articles of Confederation. Thus the Germanic Confederation was acknowledged by the representatives of the European Powers, at the Congress of Vienna, to have the right in its Collective capacity of making war and peace, of sending and receiving Embassies, and of forming aUiances and treaties within the scope of its institution ; which is declared by the Articles of Confederation to be the maintenance of the Independence of the individual States, and the inviolabiUty of their territory. The Confederation is in fact an association in the nature of a permanent League of Independent States, differ- ing so far from an ordinary League, that it is clothed with a common National character for certain pur- poses, and its Right of common action within a certain sphere of International rights and obhgations forms part of the Conventional Law of Europe. Origin of ^55. The Origin of so anomalous a body as the raanicCon- Germanic Confederation is traceable to a pohtical federation, necessity. In consequence of the creation of the Con- federation of the Rhine under the protection of the Emperor Napoleon, and the subsequent abdication of OF CHRISTENDOM. 69 the Crown of the Roman Empire of the Germans by the Emperor Francis ^^ (August 6,i8o6,) not only the substance but the name of a Germanic PoHtical Body had disappeared. It became, ho-wever, necessary after the successful conclusion of the War of Liberation, to create another Germanic Pohtical Body, partly to satisfy the deep-seated feeling of Nationality amongst the People of the Germanic States ; partly to fiU up the void which the disappearance of the Germanic Empire had caused in the centre of the European Pohtical System. It was impossible to revive the ancient Empire without the sacrifice of the Sovereign rights, which the former Vassals of the Emperor and the Empire had enjoyed since the Dissolution of the Empire in 1806, and it was neither reasonable to de- mand nor practicable to enforce such a sacrifice. The Emperor Francis accordingly repudiated the advice of those who urged him to resume, as a matter of course, the Crown of the Roman Empire of the Germanic Nation. Others spoke in favour of a new Germanic Empire to be fashioned according to the requirements of the times. The majority of the German Princes, who had been admitted to the full enjoyment of So- vereign rights, were in favour of a simple pohtical alliance amongst all the Sovereign Germanic States. The Emperor Francis rejected the idea of a new Ger- manic Empire, as it would have had the support only of political enthusiasts, and wotdd liave been opposed by the German Princes and the loyal portion of then- subjects. On the other hand, a mere aUiance between the Sovereign States of Germany did not ofier in the opinion of the Imperial Cabinet sufiicient guarantees for maintaining the tranquilhty of Germany, and might even prove to be a measure in its results antagonistic 26 Martens, Eeciieil, T. viii. p. 407. 70 NATIONAL STATE-SYSTEMS to that object. The Emperor Francis accordingly insisted on a Confederation of States, which would be compatible with the independence of the Sovereign Princes and States of Germany, and would at the same time secure the integrity of the Germanic terri- tory. The acquiescence of Russia, Prussia, and Great Britain in this scheme was made a conditio sine qua non of Austria's accession to the Quadruple Alliance in 1813. The Sixth Article of the Treaty of Peace concluded at Paris between the Four Allied Powers and France (30 May, 18 14) put the seal to the settlement of the previous year. " Les Etats de TAUemagne seront independans et unis par im. hen federatif."^'' The Sovereign Princes and Free Cities of Germany in accordance with this stipulation em- powered their Representatives to draw up certain Ar- ticles in the form of an Act of Federation, which was subsequently embodied in the Principal Act of the Congress of Vienna, and thus the German Federal Act became a recognised part of the Public Conven- tional Law of Einrope. TheFe- ^56. There was a provision in the Federal Act, of 1815.* that the Diet should draw up as soon as possible a body of Fundamental Laws for the Confederation, and should settle its Organic institutions in regard to its external, military, and internal relations. We find accordingly a series of Ministerial Conferences holden at Vienna for the piurpose of completing and consolidating the Organisation of the Confederation, and the result of these Conferences was embodied in a Final Act, (Schluss-Act,) which received the signature of the Representatives of all the SoA^ereign Princes and Free Cities of Germany at Vienna, (15 May, 1820,) and which was subsequently ap- -7 Mavtcus, N. E. II. p. 6. OF CHRISTENDOM. 71 proved by the Diet at Frankfort, (8 June, 1850,) and by an unanimous Resolution converted into a Ftinda- mental Law of the Confederation, having the same force and validity as the Federal Act itself. It is therefore in the Final Act^, that we find the Constitu- tion of the Germanic Confederation developed and completed in its various details, pursuant to the Pro- visions of Article X of the Federal Act, which was textually inserted as Article LXII in the Principal Act^® of the Congress of Vienna. The Federal Act defines the object of the Confe- deration in Article II to be the maintenance of the external and internal security of Germany, and of the independence and inviolabOity of the Confederated States. The States of the Confederation bind them- selves by Article XI to defend not only Germany in its entirety, but also each Individual State of the Union in case it should be attacked, and they mutu- ally guarantee to one another all such their posses- sions as are comprised within the Unioru When war is declared by the Confederation, no member can carry on private negotiation with the enemy, nor make a peace or an armistice without the consent of the others. The Members of the Confederation in reserving to themselves the right of forming alHances, oblige themselves not to contract any engagement which shall be prejudicial to the security of the Con- federation, or of the Individual States which compose it. The Confederate States undertake not to make war against one another on any pretext whatever, but to refer all their disputes to the Diet for its Mediation. §57. The Final ^c^, which consists of Sixty-five Final Act Articles, developes more fuUy and exphcitly the Fun- ° damental Dispositions of the Federal Act in regard -8 Martens, K E. V. p. 466. -'> Ibid. N. I!. TI. p. 409. 72 NATIONAL STATE-SYSTEMS to the external relations of the Confederation in Six- teen Articles, consecutively from the Thirty -fifth to the Fiftieth inclusively. It is declared in Article XXXV, that the Confederation has the right, as a Collective Power, to declare war, make peace, and contract aUiances and negotiate treaties with due re- gard to the objects of its Institution, as announced in. Article L of the Federal Act, namely, its own de- fence, the maintenance of the inviolabihty and ex- ternal security of Germany, and of the independence and inviolability of each of the States of the Confede- ration. Article XXXYI declares that any damage caused to any Confederate State by a Foreign Power is a damage to the whole Confederation by virtue of the reciprocal guaranty of the integrity of their possessions, and on the other hand, the Confederated States under- take to refrain from giving any provocation to Foreign Powers. In case a Foreign Power should make com- plaint against a State, the Diet is empowered to require the State, if it is in the wrong, to make re- dress to the Foreign Power. Article XXXVII pro- vides, that the Diet may examine into the origin of any differences which may arise between any State of the Confederation and a Foreign Power, and either refuse its aid if the State is in the wrong, or if the State is in the right, employ its good offices in its behalf Article XXXVIII provides, that if there is reason to apprehend danger to any State of the Con- federation, or to the whole body, the Diet shall imme- diately adopt the necessary measures of defence. Ar- ticle XXXIX provides, that if the Territory of any State of the Confederation is invaded, the fact of such invasion constitutes a state of war for the whole Con- federation, and the necessary measures of defence must be at once adopted. Article XL provides, that if it OP CHKISTEKDOM. 73 be necessary for the Confederation to make a formal Declaration of war, the General Assembly on its behalf shall make such Declaration, if a majority of two-thirds so decide. By Article XLI, a Resolution of the Diet, that there is real danger of an hostile attack, or a formal Declaration of War on the part of the General Assembly, constitutes all the Confederated States active parties in the war. Article XLII provides, that if the Diet should decide in the negative against there being any real danger of an hostile attack, the States which do not share the opioion of the majority of the Diet may concert among themselves measures of com- mon defence. Article XLIII provides, that the Diet may mediate, if requested, between a Foreign Power and any Confederated State, which considers itself to be in particular danger of a foreign attack, if both the. disputing parties consent to its mediation. Arti- cle XLIV proArides, that every State, when war has been declared, may furnish any number of troops above its contingent at its own expense. By Arti- cle XLV the Diet is empowered to take the neces- sary steps to maintaiti the neutrality of the territory of the Confederation, if it should be threatened in a war between Foreign Powers, or otherwise. Article XLYI provides, that if a Confederated State, having possessions beyond the limits of the Confederation, undertakes a war, as an European Power, the Confe- deration remains a stranger to such war. Article XL VII is a very important Article, as the protection of the Confederation is thereby extended to terri- tory beyond its own limits. It provides, that in case any State is menaced or attacked in its posses- sions not comprised within the Confederation, the Confederation is not to adopt any measures of de- fence, nor to take an active part in the war, until the 74 NATIONAL STATE-SYSTEMS Diet shall have recognised in its Permanent Council by a majority of voices the existence of danger to the Territory of the Confederation, in which case all the dispositions of the previous Articles equally apply. Article XL VIII provides, that the dispositions of the Federal Act which precludes every State, after war has been declared by the Confederation, from holding any private negotiations or making a separate peace or armistice, shall apply equally to all States, whether they possess or not territory beyond the limits of the Confederation. Article XLIX provides, that when peace is to be made, a Committee of the Diet shall direct the negotiations, and Plenipotentiaries from the Diet shall conduct them. The ratification of all treaties of peace shall only be pronounced by the General Assembly. Such is the organisation of this remarkable National League for the seciu-ity and defence of the Germanic soil from foreign attack. The Inter- The Ordinary Functions of the Diet in regard to Functions Foreign Relations of Peace are regulated by Article I. ^ '® ■ It is authorized as the organ of the Confederation to watch over the maintenance of peace and friendly relations with Foreign Powers. 2. To receive the Envoys of Foreign Powers, who may be accredited to the Confederation, and to nominate Envoys to Foreign States, if it is judged necessary. 3. To conduct nego- tiations and to conclude treaties on behalf of the Con- federation. 4. To employ its good offices with Fo- reign Powers on behalf of any of the Members of the Confederation who may claun them, and to employ them also with the States of the Confederation, if Foreign Governments should request their mterven- tion. In accordance with the second provision of the Diplomatic abovo Article, Diplomatic Relations between the Con- federation, in its character of an European Power, and OP CHRISTENDOM. 75 the Non-Germanic Powers of Europe, have been habi- tually mauitained by permanent Missions accredited by the latter Powers to the Germanic Confederation at Frankfort, but the Diet has not judged it necessary to accredit Resident Envoys on behalf of the Confe- deration to any Foreign Powers. It is only on extra- ordinary occasions, as in the case of negotiations which have affected the interests of the Confedera- tion, as a Federal System of States, that the Diet has appointed Plenipotentiaries to treat with Foreign Powers^". The respective States of the Confedera- tion meanwhile both accredit and receive Resident Plenipotentiaries, to superintend their separate Inter- national Relations with Non-Germanic Powers. ^58. It is not within the scope of the present trea- The Ordi- tise to examine at any length the Internal Constitu- "e^^iy of tion of the Germanic Confederation, further than as *'' ^'®'' regards the Executive Power, of which Foreign States must necessarily take cognizance. The affairs of the Confederation, as a Federal System of States, are in- trusted to a Federative Diet, which sits at Frankfort on the Maine, and in which each State is represented by a Minister Plenipotentiary. This Diet bears no resemblance except in name to the Diet of the Ancient Empire, which consisted of three Colleges, each inde- pendent of the other, and the Decrees of which re- quired the assent of the Emperor to give them vahd- ity. Whereas this Federative Diet is a collective Sovereign Assembly, which exercises its functions 30 Thus the Plenipotentiaries by certain portions of the Grand of Austria and of Prussia respect- Duchy of Luxemburg (Ger- ively were constituted Plenipo- manic Soil) were ceded to Bel- tentiaries of the Diet of the Ger- gium in exchange for portions manic Confederation, and in that of the Province of Limburg. character acceded on behalf of the Martens, Nouveau Eecueil, XVI. Confederation to the Treaty of p. 791. London, (19 April, 1839,) where- 76 NATIONAL STATE-SYSTEMS in absolute independence of any Superior Political Authority. The Plenipotentiaries of the States, who are bound by their instructions and cannot act without them, vote in the Diet under different con- ditions, according as they are convened in the Or- dinary Assembly of the Diet, or in the General Assembly. When the Plenipotentiaries meet in the Ordinary Assembly, or Permanent CouncU, eleven of them exercise respectively an individual vote, but the remainder vote in six separate groups, two or more States, as the case may be, having the right of giving only a single vote collectively. The votes are thus arranged without prejudice to the rank of the Mem- bers : — 1. Austria i 2. Prussia i 3. Bavaria i 4. Saxony i 5. Hanover 1 6. Wiirtemburg 1 7. Baden 1 8. Electoral Hesse 1 9. Grand Ducal Hesse i 1 o. Denmark (for Holstein) i 1 1 . Netherlands (for Luxemburg) i 12. Grand-Ducal and Ducal Houses of Saxony i 13. Brunswick and Nassau i 14. Mecklenburg Schwerin and Mecklenburg Strelitz 1 15. Holstein-Oldenburg, Anhalt and Schwarz- burg I 16. Hohenzollern, Liechtenstein, Kpuss, Sehaumburg-LippOj Lippe (Detmold) and Waldeck i 17. The Free Cities of Liibeck, Fraidifort^ Bremen and Hamburg i Total 17 Votes. OF CHRISTENDOM. 77 Hesse-Homburg was not admitted into the Confe- Aitoiasior. deration until 7 July, 1817^', when it was allowed to Homburg, share the collective vote of HohenzoUern and its co- 18,7.'''' ordinate States. The Plenipotentiary of Austria is entitled to preside in the Diet. Each State of the Confederation has the right to propose any measru-e for consideration, and the President is bound within a given time to bring it before the Diet. Such is the Constitution of the Diet in what is termed the Ordinaxy Assembly or Close CouncU. fi 50. The Diet forms itself into a General Assem- "^^^ ^^®- •' . num or bly termed the Plenum, or Full Chapter, whenever it FuU Chap- is necessary to decide upon questions touching the ^l^l_ enactment or the modification of Fundamental Laws, or the adoption of measures affecting the Federal Act itself, or the Organic institutions and other arrange- ments of common interest to the States of the Con- federation. In this Assembly every State has a separate voice, the larger States being allowed a greater number of votes in the following propor- tions : — 1 . Austria 4 2. Prussia 4 3. Saxony 4 4. Bavaria 4 5. Hanover 4 6. Wiirleinburg 4 7. Baden 3 S. Electoral Hesse 3 9. Grand Ducal Hesse 3 10. Holstein and Laucnburg 3 11. Luxemburg 3 12. Brunswick 2 13. Mecklenburg-Schwerin 2 14. Nassau 2 15. Saxe- Weimar 1 31 Meyer, Staats-Acten des Deutschen Bundes, Tom. II. p. 7i- 78 NATIONAL STATE-SYSTEMS 1 6. Saxe-Gotha 17. Saxe-Coburg 18. Saxe-Meiningen 1 9. Saxe- Altenburg ^2 20. Mecklenburg-Strelitz 2 1 . Holstein-Oldenburg 22. Anhalt-Dessau 23. Anhalt-Bernburg 24. Anhalt-Kothen 25. Schwarzburg-Sondershausen. 26. Schwarzburg-Rodolstadt 27. HohenzoUern-Hechengen 28. Liechtenstein 29. Hohenzollern-Siegmaringen,. 30. Waldeck 31. Reuss (elder branch) 32. Reuss (younger branch) 33. Schaumburg-Lippe 34. Lippe-Detmold 35. Liibeck 36. Frankfort 3 7 . Bremen 38. Hamburg Total 69 Votes. Upon the admission of Hesse-Homburg into the Confederation, (7 July, 18 17,) that State became entitled to a single vote in the Full Chapter ; so that there are at present seventy voices in the Gene- ral Assembly. The Diet, in its Ordinary Assembly, has the right of deciding by a majority of votes, whe- ther any question shall be submitted to the votes of the General Assembly. The Ordinary Assembly has the right of full discussion, and prepares the reso- lutions to be submitted in the General Assembly, which has no right of discussion ; but simply exer- i- Formerly Saxe-Hildburghausen. OF CHRISTENDOM. 79 cises a right of approval or disapproval by a majority of two-tliirds of all its votes. The Diet sits perma- nently, but it has a power of adjourning itself, after it has completed its deUberations on any subject, for a period not longer than four months. It will be seen, that as forty-seven votes are required in the General Assembly to constitute a majority of two- thirds, an affirmative decision of the General Assem- bly implies a greater amount of common agreement amongst the Confederated States than an affirmative decision of the Ordinary Assembly, and that when a combination of the more powerful States may have succeeded in carrying a measure in the Ordinary Assembly, a combination of the less powerful States may be enabled to reject it in the General Assembly. Such was the original conception of the General As- sembly in the Federal Act, by the Sixth and Seventh Articles of which it had been provided, that two- thirds of the votes of the Full Chapter should con- A Majority stitute a majority in respect of such matters of com- Third^ mon interest as come within its province. It was, however, subsequently provided by the Fourteenth Article of the Final Act, that in regard to Organic institutions, whereby are meant permanent arrange- ments, serving as means of executing the objects directly connected with the acknowledged end of the Confederation, the General Assembly must be una- Unanimity ,• , T J. xi T • oftheDiet. mmous m assentmg not merely to the prehmmary question, whether they shall aUow any measure at all under the circumstances to be laid before them, but also in approving the principle and the essential arrangements of any plan which may be proposed. If the General Assembly should decide in favour of the project submitted to them, the details of its exe- cution are to be referred to the Permanent Council, 80 NATIONAL STATE-SYSTEMS which is to decide all questions which may arise as to those details by an absolute majority of votes, with power to appoint a Committee to reconcile divergent opinions. Permanent § 6o. By Article XI of the Federal Act, the States of the Ger- of the Confederation have mutually guaranteed to federati'on °^® another all such portions of their Possessions as were comprised within the Confederation. By Ar- ticle V of the Final Act, no State is at Hberty to detach itself from the Confederation ; and by Article VI no new member can be admitted into the Con- federation, without the unanimous assent of aU the Confederated States. No change which may take place in the state of the Possessions of the members of the Confederation can affect their rights and en- gagements in reference to the Confederation without the consent of the Confederation. No State can voluntarily cede its rights of Sovereignty over any portion of its territory within the Confederation to any non-Confederate Power without the consent of the Confederation. The National Unity of the Con- federation, in regard to all matters affecting its terri- tory, is thus complete. We find, accordingly, that upon the signature of the definitive Treaty of Treaty of Londou^', (iQ April, 1 8 39,) whereby the King of 19 April, Holland ceded to the King of the Belgians a portion ' ''^' of the Grand Duchy of Luxemburg in exchange for a portion of the province of Limburg, not merely was the recognition of the Five Great Powers formally granted to the dissolution of the pohtical Union, which existed between Holland and Belgium, in pursuance of the Treaty of Vienna, of 3 1 May, 1 8 1 5 ; but the Germanic Confederation by its Plenipoten- tiaries, formally acceded to the territorial arrange- ii Martens, Nouveau Supplement, T. XVI. p. 791. NATIONAL STATE-SYSTEMS. 81 ments, which had been concluded between the Five Great Powers, on the one hand, and Holland and Bel- gium on the other hand ; and under which the King of Holland, as Grand Duke of Luxemburg, had ceded to the King of the Belgians a portion of the Grand Duchy of Luxemburg within the territory of the Confederation, in consideration of a territorial Indem- nity within the Province of Limburg. The Confede- ration having thus acceded, in its character of an European Power, to the International readjustment of a portion of its territory, it remained for the Diet to order Constitutionally, according to the provisions of the Final Act, such arrangements as might be neces- sary between the Confederation and the Grand Duke of Luxemburg, as one of its members, consequent on the altered circumstances of the Grand Duchy. The cession of territory by a State within the Union to a Power which was not a Member of the Union was an International matter, not merely as be- tween the State which ceded its territory and the Power to which such territory was ceded, but as be- tween the Germanic Confederation and the Non- Confederate Power, whereas aU subsequent arrange- ments between the Germanic Confederation and the Confederate State, consequent on the cession of its territory, were matters to be regulated not by the PubHc Law of Nations, but by the Constitutional Law of the Confederation. PART I. Or CHAPTER IV. THE OTTOMAN EMPIRE. International Kelations of the Mahommedan World — Admission of the Porte into the Fellowship of European Nations — Treaty of Paris, 30 March, 1856 — Declaration of Maritime Law — Constitution of the Ottoman Empire — Christian and Mahommedan Dependen- cies — Exceptional Position of Tunis — The States on the Barbary Coast — Treaties with Algiers — Early Treaties with the Sublime Porte — The Barbary States in practice Hereditary Regencies — Pas- chalik of Egypt — Treaty of London, 15 July, i840^Principality of Servia — Treaties of Sistova, Bucharest, Adrianople and Ackennan — The Principalities of Walachia and of Moldavia — Treaties of Carlo- vitz, Kutschauk-Kainardji, Bucharest, Adrianople, St. Petersburg — Convention of Balta Liman — Treaty of Paris — The Danube and the Dardanelles — Neutralisation of the Black Sea — The Principality of Montenegro — Treaties of Carlowitz, Passarovitz, Sistova — Congress of Paris. Interna- §6 1. The International Relations of the Ottoman lat^ons of Porte with the Christian Powers of Eiu"ope have ua- the Ma- clerofone a remarkable change and received an extra- hommedan p _ » World. ordinary development- during the last preceding thirty- years. At the commencement of the present century, it would not have been incorrect to have described those Relations as resting solely on compact. Such, indeed, was the view adopted by Lord Stowell m 1804, when he was called upon to administer the Pubhc Law of Europe in matters wherein the interests of Ottoman Subjects were concerned, " The Inhabitants of the Ottoman Empire," he observes \ " are not possessors of exactly the same Law of Nations with ourselves. In consideration of the pecidiarities of their situation and character, the Covoct has repeatedly expressed its disposition not to hold them bound to the utmost rigour of that system of Public Law, on which Euro- pean States have so long acted m their intercourse ' The Madonna del Burso, 4 c. Robinson's Admiralty Eeports, p. 172- THE OTTOMAN EMPIRE. 83 with one another." The same distinguished Jurist, on another occasion^ when the acts of an estabhshed Mahommedan Government were impugned, observed that "although their notions of justice to be ob- served amongst Nations differ from those which we entertain, we do not on that accoimt venture to call in question their Pubhc Acts. As to the mode of con- fiscation, which may have taken place on this vessel, whether by formal sentence or not, we must presume it was done regularly in their way, and according to the Established Custom of that part of the world. There might perhaps be cause of capture, according to their notions, for some infringement of the Regula- tions of Treaty, as it is by the Law of Treaty only Law of that these Nations hold themselves bound, conceivmg ^^ ^' (as some other people have foohshly imagined) that there is no other Law of Nations but that which is derived from positive compact and convention, Wheaton has adopted an identical view of the In- ternational Relations of the Mahommedan world. " The European Law of Nations," he writes^, " is mainly founded upon that community of origin, man- ners, institutions, and religion, which distinguishes the Christian Nations from those of the Mahommedan world. In respect to the mutual intercourse between the Christian and the Mahommedan Powers, the former have been sometimes content to take the Law from the Mahommedan, and in others to modify the International Law of Christendom in its apphcation to them. Instances of the first may be found in the cases of the ransom of prisoners, the rights of ambas- sadors, and many others where the milder usages estabhshed amongst Christian Nations have not yet 2 The Helena, 4 c. Eobin- 3 History of the Law of Na- son's Admiralty Eeports, p. 6. tions. Part IV. §21. G 2 84: THE OTTOMAN EMPIRE. been adopted by the Mahommedan Powers. On some other points they are considered as entitled to a very relaxed appHcation of the peculiar principles estabhshed by long usage amongst the States of Eu- rope, holding an intimate and constant intercourse ■with one another." Admis- ^62. Such may have been a correct picture of the Porte into exceptional position which the Ottoman Porte occu- *jj?^^^°^"pied amongst the Powers of Europe during the early European part of the reigu of the Emperor Mahommed II. (1808 — 39). The Ottoman Empire was accordingly not represented by any Minister in the Congress of Vienna (anno 18 15), nor was it included in the system of Pubhc Law recognised by the Powers there assem- bled. But since the destruction of the Janissaries (17 June, 1826) the Ottoman Porte has steadily advanced in its practice towards the European platform of Public Law. It has not, it is true, made any formal communication to the European Powers on the sub- ject-; but it may be considered to have substantially pledged itself to the acceptance of the International Law of Europe by subscribing, as one of the Parties Treaty of to the General Treaty of Paris, (30 March, 1856*,) March, ° the clausc of the Seventh Article, whereby the Sub- 1856. liuie Porte is declared " to be admitted to a parti- cipation in the advantages of the Pubhc Law of Europe and the System of Concert attached to it," since it is a cardinal prraciple of that System, that the rights and obhgations of Nations are reciprocal. The Porte appears on that occasion not only to have acquiesced in the declaration of its admission into the European Family of Nations, but to have joined in applying to itself the principle involved in that decla- ration, as may be clearly deduced from the Fifteenth 4 Martens, N. E. Gen. XV. p. 770. THE OTTOMAN EMPIRE, 85 and Sixteenth Articles of the Treaty, whereby the Provisions of the Final Act of the Congress of Vienna concerning the navigation of rivers, which separate or traverse several States, are made apphcable to the Danube and its mouths, and which disposition is de- clared to form part of the Pubhc Law of Europe, and to be under the guaranty of all the Contracting Powers. The Porte had already abandoned its own traditions with regard to the precedence and reception of Foreign Ambassadors, and had in practice con- formed itself to the rules estabhshed amongst the European Powers in regard to an uniform mode of reception, and an uniform scale of rank and precedence for Ambassadors and other Diplomatic Agents : it had aheady appealed in its negotiations with various Christian Powers, as for instance in the case of Greece ia 1854, to International Rights and the Law of Na- tions as something independent of mere Compact, and upon which it took its stand in common with the Powers of Europe ; it has further by subscribing the Declaration of Maritime Law at Paris, (16 April, Deciara- 1856,) subsequently to its signature of the General rit^°e Treaty, formally placed on record its assent to the ^^^'j ^^ milder practice, which the European Nations have 1856. agreed henceforth to adopt, in regard to the respective rights and duties of Belligerent and Neutral Powers. It wotdd thus appear, that the Ottoman Porte has for all practical purposes adopted the Common Law of Europe, as the rule of its intercourse with Non- Mahommedan Powers in matters not specially provided for by Treaty- engagements. Its International Rela- tions under Treaty- engagements are and will pro- bably continue to be extremely anomalous, owing to the broad line of demarcation which separates the manners and institutions of the Mahommedan world from those of Christendom. Some of these 86 THE OTTOMAN EMPIRE. Treaty- engagements are strictly of a political cha- racter, establishing special obligations between Chris- tian States and Individual Governments of the Otto- man Empire ; others have in view the regulation and security of commercial intercourse between Otto- man and Christian Merchants, and are in form Capi- tulations between the Porte and Individual Christian Powers, being limited in their apphcation to the sub- jects of those Powers whilst resident within the Otto- man Territory. These will require special notice in their proper place when the rights of Treaties are discussed ; it will be sufficient for the present to have alluded to them. Constitu- ^63. The Ottoman Empire is constitutionally a ottoman''^ Single State, composed of thirty-six^ General Govem- Empire. meuts, termed " Eyalets," which are subdivided into Provinces (hvas or sandjaks) ; the Provinces are in their turn subdivided into Districts (Cazas or Centres of Justice), which are again subdivided into Cantons (nahyes) composed of Villages or Hamlets. This uni- formity of organisation, which in theory pervades the entire Empire, dates only from the reign of the present Sultan Abdul Medjid, who succeeded to the throne in the year 1839. Of these Eyalets fifteen are in Europe, eighteen in Asia, and three in Africa. But although such is the theoretical organisation of the Ottoman Empire, there is practically a distinction between those portions of it, which are directly subject to the author- ity of the Emperor or Padischah of the Ottomans, such as the Asiatic Eyalets, the Eyalet of TripoH in Africa, and the European Eyalets, exclusive of the Danubian Principalities and Montenegro, and certain other portions of it, wliich are only indirectly subject to the Central Authority, and which, whilst they are recog- 5 This number is given in the La Turquie Actuelle, Introdue- Imperial Almanack (Salname) of tion, p. i6. 1854, and is adopted by Ubicini, THE OTTOMAN EMPIKB. 87 nised internationally, as integral parts of the Ottoman Empire, are governed either by hereditary Paschas or Beys, as in the case of Egypt and Tunis, or by native Princes nominated for hfe, as in the cases of the Christian Principalities of Walachia, Moldavia, Ser- via, and Montenegro. Each of these four Christian PrrncipaHties enjoys the priAolege of' an independent legislature and of an independent internal administra- tion ; but these anomalous portions of the Ottoman Empire do not stand in any common relation either towards one another or towards the Porte, except so far as they participate in the general character of De- pendencies. By a strict appHcation of its Rehgious Law (The Coran, IX. 29.) the Porte holds each of its Christian Dependencies by the obhgation of paying christian Tribute and obeying the General Law of the Empire, eiefmere^y The Mahommedan Dependencies, on the other hand, ^fe' *° are bound to meet the Padischah's requisitions in men Mahomme- and money for the purposes of war. The general deude?^" rule has been modified in particular instances owing at one time to the weakness of the Porte, at others to the interference of Foreign Powers taking the form of Treaty-engagements, to which effect has been given by the Emperor's Firman or Edict. In a few cases there have been original Capitulations between the Porte and its Dependencies. No class of Depen- dency has a separate power of making peace or de- claring war. They all follow in these matters the lead of the Porte, and would in consequence thereof, without some special provision for their Neutralisa- tion, be liable to hostile treatment whenever the Porte is at war with a Foreign Power. Tunis alone Excep- stands in an exceptional position. As a Dependency gjtbn of° of the Empire, liable to be called upon to furnish its Tunis- military Contingent, it might be fairly included in a Declaration of War against the Ottoman Porte. But 88 THE OTTOMAN EMPIRE. several of the Christian Powers of Eiirope, maiataining a state of amity with the Porte, have separate treaties directly with the Government of Tunis, and on that account Tunis might reasonably be considered by such Powers as not of necessity involved in hosti- hties, if war should arise between those Powers and the Porte. The Porte, it is true, has never acknow- ledged the right of its Dependencies on the Barbary Coast to enter into separate treaties with the Euro- pean Powers, on the contrary, such treaties have been always ignored by the Porte, and the Padischah has from time to time in his Sovereign character entered into Treaty-engagements with the European Powers, whereby he has undertaken to restrain the Governors of those Dependencies from aU acts of hostihty against those Powers. StiU the Bombardment of Algiers by the European Powers in 1815 was held to be consist- ent with a state of Peace between those Powers and the Ottoman Porte, and the subsequent attack and occupation of Algiers by the French did not bring on War between France and the Ottoman Empire. The states § 64. The Dependencies of the Porte on the Bar- bary Coast" bary Coast were formerly three in number, Algiers, Tunis, and Tripoh. Of these, Algiers was not origi- nally a conquest of the Porte, but an acquisition of the Greek Renegade Kharaddin, better known as Barbarossa, who first introduced the practice of piracy in the Mediterranean and Levant Seas, and left it an established institution amongst the Mussul- man tribes of the Barbary Coast. Barbarossa and his brothers were in fact Condottieri of the Sea. They had under the pretext of commercial enterprise esta- bhshed an armed fleet in the Mediterranean, and Algiers, when Solim, the last Independent Prince of Algiers, was hard pressed by the united forces of the Spaniards and the Arab Tribes in aUiance with the Emperor THE OTTOMAN EMPIRE. 89 Charles V, Barbarossa brought his squadron to his aid, and upon his death succeeded to his Sovereignty. He was however sensible of his inability to struggle alone with success against the Powers of Christen- dom, and he accordingly hastened to place himself, as a vassal, at the feet of the Padischah of the Ottomans, who readily accepted his submission in that character, and conferred upon him the government of his newly acquired territory with the title of Bey. The subse- quent career of Barbarossa fiUs a considerable page in the History of the Ottoman Empire. By the orders of the Emperor Soleiman I, he led his fleet against Tunis with a view to dethrone the Sultan Moulei Hasan, and to supplant his dynasty. His success was Tunis. but temporary, and Tunis was restored to the ancient dynasty of Beni-Hafas by the united arms of the Em- peror Charles Y and the Knights of Malta. Tunis ex- perienced subsequently great vicissitudes. The Span- iards under Don John of Austria regained possession of it for a short time in 1572, but in 1574 it passed definitively into the hands of the Ottomans, and it con- tinues in the present day to be a Dependency of the Porte. Tripoh had meantime been wrested by the Otto- Tripoli, man arms from the Knights of St. John of Jerusalem, and it was placed in hke manner under the govern- ment of a Beylerbey. It was after this period that other Renegades from Christianity, taking advantage of the rehgious law of the Mussulman, which contem- plates a permanent state of war to exist between the true Behever and the Unbehever, capable of being suspended only by express treaty or by pay- ment of tribute, gave so great a development to pira- tical enterprise in the ports of the three Barbary Powers, that they came to be considered in Europe as mere nests of pirates, which had usurped the cha- 90 THE OTTOMAN EMPIRE. racter of political Bodies. So formidable indeed were the ravages of the Algerine Corsairs in the Seven- teenth Century, and so inefficient was the Sovereignty of the Ottoman Porte to restrain them, that the Christian Powers of Europe found it expedient to conclude Conventions directly with the Barbary Go- vernments in furtherance of treaties already existing Treaties with the Ottoman Porte. Thus Louis XIII of France giers. concluded a treaty at Marseilles with the Pascha of Algiers (24 March 1619)", whereby the latter bound himself to observe more faithfuUy than heretofore the commands of the Porte in regard to its Capitulations with France. In the following year, Great Britain prepared to attack Algiers with a fleet under the command of Admiral Monson, but the projected hos- tihties were diverted by the payment of an indemnity from the Ottoman Porte. This result had been brought about through the instrumentality of Sir Thomas Roe, who had been despatched to Constanti- nople to open negociations directly with the Porte I Special treaties were soon after concluded between England and the Regencies of Algiers and Tunis respectively, which received the confirmation of the Padischah. In the middle of the Seventeenth Cen- tury King Charles II of England despatched the Earl of Winchelsea, (anno 1660,) as Ambassador to the Governor of Algiers, who had very recently as- sumed the title of Dey, and concluded a Treaty of Commerce directly with the Dey, the main object of which was to seciu-e British Merchant Vessels from piratical sei2;ure. EariyTrea- ^ 65. It appears from the Treaty concluded by Sir the Sub- John Finch in 1675, between the Ottoman Porte and lime Porte. fi Flassan Histoire de la Diplo- Ottoman Porte, p. 35. 260. Von matie Francaisell. p. 329. Du- Hammer. Histoire de I'Empire mont, Trait^s L. V. pt. II. p. 330. Ottoman, IX. p. 30. Paris 1837. 7 Roe, Negociations with the THE OTTOMAN EMPIRE 91 England ^ which recites and confirms the Articles of all the previous Treaties, that in the earliest Treaty with England, the Ottoman Porte had agreed " that the English Ambassadors may at their pleasure esta- blish Consuls, resident in Aleppo, Alexandria, Tripoh of Syria, or Tunis, Algiers, Tripoh of Barbary, in Smyrna, the parts of Cairo, or any other parts of our dominions, and in like manner remove them or change and appoint others in their places, and none of our Ministers shall oppose or refuse to accept them ;" and further, "the Enghsh Nation's Consul or Resi- dent in any part of our dominions, being estabhshed by the Ambassador resident for the Enghsh Nation, our Minister shaU have no power to imprison or ex- amine them, or seal up their houses, nor to dismiss or displace them from their charge or office ; but in case of any difference or suit with the Consul, there shall be made a Certificate to the Imperial Porte, to the end that the Ambassador may protect or answer for them." Although therefore stipulations are found in the Treaties concluded with the Barbary States respect- ing the protection to be afforded to the Consuls of the European Powers, it must be borne in mind that the Consuls were not accredited to the Barbaiy Powers, as some writers on International Law assume, but ex- ercised their functions under Treaty- engagements with the Porte itself MoUoy^, in speaking of the Barbary Powers in the reign of Charles II, misled perhaps by the fact that the Earl of Winchelsea, the Ambassador of England to the Ottoman Porte, con- cluded a Treaty vnth the Dey of Algiers on his pas- sage to Constantinople, partakes in the common error of describing them as nests of pirates which, not- withstanding this, "obtain the right of legation and 8 Hertstet's Treaties, II. p. 349. 9 De jure Maritimo, p. 38. § 4. 92 THE OTTOMAN EMPIRE. having acquired the reputation of a Government, can- not now possibly be esteemed pirates, but enemies." He had previously described them more correctly as " Governments or States, upon which, although they acknowledged the supremacy of the Ottoman Porte, yet all the Power of it cannot impose more than their The Bar- own wiUs voluntarUy consent to." The Governments in'^practice thomselves, although dejure held during the pleasure Hereditary q£ j^q Padischah, had bccome iu practice, owinor to Kegencies. ^ ^ . the weakness of the Porte, Hereditary Regencies. The Bey however on his accession never omitted to claim the sanction of the Sultan, which with an appearance of demur was' usually granted on the presentation to his Imperial Majesty of objects more or less valuable, qualified by the Porte as tribute, and by the Bey as a free gift. In cases of war the Bey furnished a con- tiagent, the quahty and amount of which he strove to regulate according to circumstances. Such is still the condition of Tunis ia the present day. The Porte has by force of arms within recent times reduced TripoH to the condition of an immediate Paschalik like the Asiatic Eyalets, and had resolved to compel Tunis to submit itself in a similar manner to the absolute wiU of the Padischah. France however threatened to interfere in defence of the Bey, and Tunis has re- mained undisturbed. Algiers, on the other hand, has ceased to form a portion of the Ottoman Empire in any sense, since it passed into the hands of the French Nation in 1830. PaschaUk § 66. The Condition of Egypt may be regarded as ° ' the result of an European International Compact, as although it has been in form settled by a Firman or Edict of the Padischah of the Ottomans, that settle- ment was the result of an agreement between the Porte and four of the Great European Powers, and THE OTTOMAN EMPIRE. 93 has received the Guaranty of those Powers under a Treaty concluded between them and the Porte, (15 July, i84o'''>) The power of the Mamelukes had survived the Ottoman conquest of Egypt, and al- though after that conquest the government was always administered by a Turkish Pascha, nominated by the Padischah, and holding office during pleasure, the more powerful Beys of the Mamelukes continued Destruc- to be the real Governors of Egypt", until they were ^^e- annihilated by the craft and treachery of Mehemet ^"^'^^■ Ah. It was not until after that event that it became possible for the Pascha of Egypt to raise the standard of Independence ; and Mehemet Ah was not slow to take advantage of the weakness of the Porte, when the opportiuiity presented itself. After a series of five successful conflicts with the Ottoman forces dvu- ing the year 1832, the victorious army of Mehemet Ah encamped at Kutayeh, and threatened Constan- tinople, when the intervention of a Russian fleet, which cast anchor in the Bosphorus on 20th Feb. 1833, alone saved the throne of the Padischah. The Convention of Kutayeh, (5 May, 1833,) put an end to hostihties, and gave to Mehemet Ah the whole of Syria and the Paschalik of Adana. In the war which subsequently ensued, the successes of Mehemet Ali again threatened to impair the integrity of the Otto- man Empire, and the Independence of the Sultan's Throne ; which circumstance led to the intervention of Great Britain, Austria, Prussia, and Russia, " in the interests of the peace of Europe." These Powers accordingly became parties to a quadruple treaty with Treaty of the Porte, (Treaty of London, 15 July, 1840 ^^) under i^^july^ 1840. 10 Martens, N. E. General, I. FEmpire Ottoman, IV. p. 270. p. 156. '= Martens, N. E. G&. I. p. 11 Von Hammer, Histoire de 156. 94 THE OTTOMAN EMPIRE, which they agreed to enforce against Mehemet Ali the provisions of an arrangement settled between themselves and the Sultan ; the details of which were specified in a separate Act annexed to the Treaty. Under this arrangement the Sultan was to grant to Mehemet Ah the administration of the Pas- chaKk of Egypt, with the reversion of it to his de- scendants in the direct line, subject to the payment of an annual tribute. France stood aloof from any par- ticipation in this Treaty, but seconded the result by her moral influence at Alexandria ^^ It may accord- ingly be considered to be now a part of the Conven- tional Law of Eiiropean Nations, that the Pascha of Egypt, as long as he is a direct descendant of Mehe- met Ali, may transmit the Government of that country to his heirs, subject to the payment of tri- bute to the Padischah of the Ottomans as his Sove- reign. The Sublime Porte, however, is still the authority to which Foreign Nations must address themselves in the first instance, in all International matters which concern Egypt. The Porte still grants the Exequatur to Foreign Consuls resident at Alexandria or Cairo, and it gives operation to Trea- ties of Commerce, which concern Egypt, by its Firman addressed to the Pascha and requiring him to give full power and effect to such treaties. ThePrin- ^ 6j. The Christian Principalities of the Ottoman Servia. Empire which are situated in Europe, are of a dif- ferent character both politically and internationally from the Mahommedan Governments in Egypt and on the Barbary Coast. They consist of Servia, the two Danubian Principalities as they are sometimes termed, namely Walachia and Moldavia, and the '3 Memorandum of M. Thiers, Oct. 1840.) Martens, N. E. Gen. Minister of Foreign Affairs, (5 I. p. 183. THE OTTOMAN EMPIRE. 95 Prince-Bishopric of Montenegro. Servia is the most important of these States, whether we regard its political antecedents, or its present military power. The Servians in the Twelfth Century had laid the foundation of an Empire which underwent rapid de- velopment, and which embraced, in the middle of the Fourteenth Century prior to the Ottoman Invasion, all Macedonia, certain towns in Thessaly and Albania, and portions of Thrace. The Independence of Servia terminated with the disastrous battle of Kossova, (15 June, 1389,) after which event its territory was divided by its Ottoman conquerors into various Pas- chaliks, the chief of which was established at Bel- grade. It was not until the commencement of the present century, (anno 1804,) that the Servians awakened to the recollection of their former Inde- pendence, and rose in insurrection against the Janis- saries of Belgrade, who in defiance of the stipulations of the Treaty of Sistova^'' (4 August, 1791) had re- Treaty of occupied Servia and were perpetrating cruelties of^Au™' the most atrocious character. The Servians, under '79i- the leadership of Kara George, and with the counte- nance of the Porte itself, succeeded in expelling the Janissaries out of Servia, and afterwards finding their newly acquired hberty too sweet to be relinquished, resolved to estabhsh a National Government with Kara George as its Chief (Yosd). The Russian Go- vernment had meanwhUe undertaken to advocate the cause of the Servians with the Porte, and when war broke out in 1806 between Russia and the Porte, the Servians having successfully laid siege to Belgrade, joined their forces to those of Russia. The peace of Treaty of BllGrlRl'Cflt Bucharest (28 May, 1812^^) left the Servians practi- 28 May, 1812. 14 Martens, Eecueil, Tom. V. p. 244. 15 Martens, N. K. Tom. III. p. 197. 96 THE OTTOMAN EMPIEE. cally at the mercy of the Porte, although Russia had made certain highly favourable stipulations on their behalf in her treaty with the Porte, and Servia was thereupon once more reduced to the condition of a Turkish Province. But the spirit of Independence amongst the Servians was not extingTiished. It broke forth at intervals, was countenanced by Russia, and at last, with the support of that Power, Servia obtained from the Porte the recognition of its admi- nistrative Independence, in pursuance of the provi- Treatyof slous of the Treaty of Adrianople^® (14 Sept. 1829) nop"e,i4 concluded between Russia and the Ottoman Porte. Sept. 1829. This recognition took place under the form of a Hatti Scheriff, (29 Nov. 1829,) in which the Sultan declared, that having regard to the Treaties of Bu- charest and Adxianople, as well as to the Convention Treaty of of Ackerman^', (7 Oct. 1826,) and likewise to the 7 0ct™^°' prayers of the Servians, who had always been faithful '^^^- subjects of his Empire, he had accorded to them the hberty of Christian Worship, and an Independent Internal administration, with various other privileges in accordance with the provisions of a separate Act Organic annexed to the Treaty of Ackerman. The existing Servia!* ° Constitution of Servia was subsequently settled by an Organic Statute, issued by the Sultan in 1838. This Statute confers the Sovereignty of the Province upon Prince MUosch and his family, the princedom being declared to be hereditary in his family ; and after eimmerating other matters of detail, confers upon him (A) the nomination of public functionaries, (B) the command of the troops, (C) the powers of the Exequatiir, (D) the collection of the taxes, (E) the control of the provincial authorities, (F) the jurisdiction over criminals. At this period, (anno '"• Martens, N. R. VIII. p. 116. i7 Ibid. VI. p. 1053. THE OTTOMAN EMPIEE. 97 1829,) when Lord Ponsonby on behalf of Great Bri- tain was suggesting certain modifications in the Or- ganic Statute, the Sultan refused to recognise any title in Great Britain to interfere in the affairs of Servia ; but admitted the right of Kussia under her treaties with the Porte to exercise a voice. The Treaty of Paris^^ (30 March, 1856,) has placed the esta- blished relations between Servia and the Ottoman Porte under the collective guaranty of all the Powers which are parties to that treaty. The Suzerainty of the Porte, and its right of garrison as heretofore, is maintained on the one hand ; whilst, on the other hand, the Principality of Servia retains its National and administrative Independence, as well as full Hberty of worship, legislation, commerce, and navi- gation ; nor can any armed intervention take place in Servia without a previous accord amongst the High Contracting Powers. It would be out of place in the present treatise to follow the fortune of Prince Milosch and his family ; it will be sufficient to have traced the International vicissitudes of the Princi- pality, and to have shewn how its present anomalous state of International transition is founded upon Treaty-engagements between the European Powers and the Emperor of the Ottomans, in his character of Suzerain. § 68. The Principahty of Walachia had paid tribute The Prin- to the Ottoman Porte since the commencement ofwTiachia'' the Fifteenth Century, although the Sultans were not really masters of Walachia untU the death of Wlad, (anno 1461,) the last Independent Prince. From this period down to 1521, Walachia was go- verned by its own Voievodes, elected by the Boyards and confirmed by the Sultan. Soleiman I, whose >8 Martens, N. R. G6n6ral, XV. p. 770. PART I. H and Mol- davia. 98 THE OTTOMAN EMPIRE. brilliant reign has earned for him from Christian his- torians the titles of the Great and the Magnificent, but whom the Ottomans have distinguished by the more modest epithet of the Lawgiver, determined to add Walachia substantively to his Empire, and to place over it a Governor of his own choice. He accordingly appointed Mahommed Bey to the post of Sandjakbey of Walachia. This personage, having lulled the Boyards into security by a Treaty, in which he guaranteed to them their ancient privileges, caused the Prince, whom they had elected according to custom, to be assassinated at the moment when the Sultan's Commissary pretended to instal him into office. So flagrant an atrocity led to the armed in- tervention of the Hungarians under Jean Zapolya, and the Sultan was induced, after a series of disas- trous conflicts, to restore the Principality to its an- cient condition of a tributary State under an elective Prince. Moldavia, on the other hand, had recognised the Sovereignty of the Ottoman Porte in 151 6, and after the campaign of Vienna, Baresch, Prince of Moldavia, did homage to the Sultan Soleiman I, and received from him a diploma which secured to the Christian population the liberty of religious worship, and conferred upon the Boyards the election of the Prince, subject to the ratification of their choice by the Sidtan, and to the condition of paying an annual tribute at Constantinople. The fortimes of Moldavia were for a short time mixed up with those of Tran- sylvania, which latter province upon the conclusion of Peace of the peacc of Sitvatorok, (11 Dec. 1606,) had also i\ Dec''" ' become a tributary State of the Ottoman Empire 1606. under the government of an Elective Prince. Soon after that event the Estates of Transylvania elected Gabriel Bethlen to be their Voievode, (anno 1613,) THE OTTOMAN EMPIEE. 99 who being supported by the Porte in his schemes of territorial aggrandisement against Hungary, but not daring to place upon his own head the ancient Crown of St. Stephen, endeavoured to found a new Empire. In this poHcy Gabriel Bethlen was supported by England, France, Holland, and the Republic of Venice, and was even permitted by the Sultan to enter directly into political treaties with those Powers. The Emperor Ferdinand II was ultimately fain to conclude two successive treaties^' with Ga- briel Bethlen as an Independent Prince : and upon the reestabhshment of peace between the Emperor and the Sultan, Gabriel Bethlen demanded for him- self from the Porte the investiture of the princi- palities of Moldavia and Walachia, with the title of King of Dacia. The death of Gabriel Bethlen, which happened soon afterwards from natural causes, opened the way to great changes in the condition of the Principalities. Rakcoczy was elected to the office of Yoievode by the Estates of Transylvania, and his election was confirmed by the Ottoman Porte. Mol- davia on the other hand, and Walachia, which had hitherto been governed by native Princes, became a prey to the avarice of the Viziers of the Porte, and to the intrigues of Greek and other adventurers, who pretended successively to the Crown of Dacia ^''. The Treaty of Carlowitz^^ (anno 1699) deprived Treaty of the Ottoman Porte definitely of its Suzerainty over anno°r699, Transylvania, and soon afterwards the Boyards of Moldavia were authorised by the Sultan to choose as Hospodar (or Farmer of the Province) one of 19 Von Hammer, Histoire de 1618,) Bernawski, a Pole, (anno I'Empire Ottoman, IX. p. 118. 1626,) and Alexander Elias, a io Moldavia was ruled succes- Greek, (anno 1620 — 1631.) sively by Yankoul a Saxon, (anno ^1 Schmauss, Corp. Jur. p. 1580,) Gratiaiii, a Croat, (anno 11 33. H 2 100 THE OTTOMAN EMPIRE. themselves, (3 Oct. 1703.) The Voievodeship of Walachia was meanwhile sold for the most part to the person who offered the highest rent as Hospodar, and gave the most costly presents to the Grand Vizier. The two Principalities were now and then granted to one and the same person, but the in- stances of this twofold Investiture are very rare. Treaty of ^ (,g guch is an Outline of the political vicissitudes chauk-Kai- through which the two Danubian Principalities have """^ ^'' passed, prior to the Treaty of Kutschauk;-Kainardji^^ (10 July, 1774.) By this treaty, the Empress Catha- rine of Russia agreed to restore to the Porte the pro- vince of Bessarabia, and the Principalities of Mol- davia and Walachia, which the Russian armies had overrun. The stipulations in favour of the Princi- palities were peculiar. It was provided that the in- habitants should have the free exercise of the Christ- ian Religion, and that the Prince of each Principality should be allowed to maintain a Charge d' Affaires at Constantinople, to superintend the affairs of each Principality, and who should be entitled to the privi- leges of an Envoy under the Law of Nations. The Porte also consented that the Russian Ambassador at Constantinople might advocate the cause of the Prui- cipalities, if circumstances required it ; and promised to Ksten to him with respect and favour. An expla- Conven- natoiy Convention was subsequently signed at Con- Constanti- stantinople, (10 March, 1779^,) in which the right of March,' ° *^® Porte to levy tribute from the Principalities was 1779- submitted to certain regulations. By the next fol- Treatyof lowLng Treaty of Bucharest, (28 May, I8I2^^) the 28 M^y^^*' Ottoman Porte ceded to Russia those portions of iSr-j. Moldavia which lay on the left bank of the Pmth ; -- Martens, Eecueil, II. p. 286. 23 Ibid. p. 653. ^ Martens, Nouveau Eecueil, III. p. 397. THE OTTOMAN EMPIRE. 101 which river was to be henceforth the boundary of the Ottoman and Russian Empires. The subsequent Treaty of Adrianople (14 Sept. 1829) made an im- Treaty of portant change in the International Status of the nopTe, 14 Principalities. The Fifth Article, which referred to '^"p'- '^'9- Moldavia and Walachia, as being under the Suze- rainty of the Porte and the Guaranty of Russia, sti- pulated that they should enjoy an Independent National administration, and fuU liberty of commer- cial intercourse, with special reference to certain pro- visions contained in a separate Act annexed to the Treaty. Under this Act it was provided that the office of Hospodar should be an office for hfe ; s^^b- ject in other respects to the regulation of the separate Act of the Convention of Ackerman^^ (7 Oct. 1826.) Conven- By the latter Act, which purported to explain the Ackerman. Treaty of Bucharest, it had been provided that the Hospodars should not be dismissed from their office by the Porte, without the permission of Russia ; and the Russian Consuls were empowered concurrently with the officers of the Porte to remonstrate with the Hospodars, if they should infringe in any manner the privileges of the Country in regard to taxes and . other imposts. The Porte further imdertook by the Treaty of Adrianople, (14 Sept. 1829,) that no Mus- sulman should set foot in the Principalities except for temporary purposes of commerce. The Internal administration of the two Principahties was to be perfectly Independent, and their Governments were authorised to raise a native militia for the purpose of enforcing the Quarantine regulations, protecting the frontiers, maintaining peace and order, and exe- cuting the laws. By a subsequent Treaty signed at Treaty of St. Petersburg, (29 Jan. 1834,) and kept secret for ,f^;.^\'g''''" 25 Martens, N. E. VIII. p. 143. -''■ Ibid. N. K VI. p. 1053. J^"- '^.H. 102 THE OTTOMAN EMFIKE, some tirne^', it was agreed that the Hospodars should for that turn be nominated according to an agreement between Russia and the Porte ; and it was further sti- pulated that the Porte should give regimental colours to the native militia which kept garrison in the Inte- rior of the two Provinces ; and a flag for the Walacho- Moldavian merchant vessels navigating the Danube. Conven- fj^g ia,st Conveution which it is necessary to notice is tion 01 1 „ T . , BaitaLi- that of Balta Liman^, (i May, 1849,) under which isTp.' ^^' Russia and the Porte by common consent suspended the existing political Constitution of the Principahties, as estabhshed by the Organic Statute of 1831, and made arrangements for a Commission of Boyards to submit a new pohtical Constitution for the mutual approval of the two Courts. Meanwhile Russian and Ottoman troops were to occupy the Principalities, and the two Courts were to have each an extraordi- nary Commissioner resident in the Principalities. These Commissioners were to offer their advice and counsel in common to the Hospodars, and were to agree together in selecting the Commission of Boy- ards to revise the Constitution. It was further pro- vided that all the previous treaties confirmed by the separate Act of the Treaty of Adrianople should retaia their fuU force and effect. § 70. It is difficult in examining the Convention of Balta Liman to appreciate the pohtical relations under which the two contracting Powers respectively claimed to deal with the Internal affairs of the Prin- cipahties. It is recited in the preamble, that they 27 This circumstance may ac- key, 1774 — 1849,) presented to count for this treaty not being both Houses of Parliament by found in any general collection command of her ^Majesty, 1854. of treaties. It occurs amongst -^^ Martens, N. E. General, the Treaties (Political and Terri- XIV. p. 378. torial) between Russia and Tur- THE OTTOMAN EMPIRE. 103 act in a spirit of fidelity to their antecedent engage- ments, which secure to the Principahties the privi- leges of a distinct administration and certain other local immunities ; and that it has become necessary to adopt by common agreement extraordinary and effectual measures for the protection of those immu- nities and privileges, which the Principalities ought to enjoy, in virtue of solemn treaties concluded be- tween Kussia and the Sublime Porte. It would thus seem that the right of joint action on the part of the Two Powers was held to rest on antecedent Treaty- engagements, under which they were called jipon to exercise a joint Protectorate over the Principahties. The Sixth Article reserved to the two Courts the right at the expiration of seven years to take into consideration the then existing State of the Princi- palities, and to determine upon the ulterior measures which they might judge most suitable, to ensure their wellbeing and tranquiUity. No allusion was made throughout this Convention to the Sovereignty of the Sublime Porte, and the two Imperial Courts were to have in substance an equal voice in directing the pohtical action of both Principalities. The es- tabhshment of a Russian Resident in each Princi- pahty by the side of an Ottoman Resident, with a right of political action within a certain sphere, as distinguished from the commercial agency of a Con- sul, was ostensibly a step in the direction of recog- nising the Independence of the Principalities. On the other hand, as each Resident was entitled under the treaty to advise and counsel the Hospodars, each Power possessed an indirect right to control the In- ternal administration of the Principalities. The right of the Sultan indeed rested upon ancient Cajoitula- tions with the Principalities themselves, whereas the Paris 104 THE OTTOMAN EMPIRK. right of the Emperor of Russia rested upon Conven- tions with the Sultan ; who may be thus taken to have boimd himself by treaty to share with Russia the active duties of the Suzerainty, which he exercised under the Capittilations. Treaty of ^71. Such was the pecuHar Status of the Danubian Principahties before the Treaty of Paris. Their poli- tical relations were certainly ambiguous, but there is no difficulty in arriving at the conclusion that they were not Members of the Family of Nations . They had not the right of Legation under the Law of Nations, for the reception of their Resident Charges d' Affaires at Constantinople was exceptional, and their func- tions were regulated by a special convention between the Porte and Russia ; they had not the right of Alliance, as all public treaties respecting the Princi- pahties were concluded between their Suzerain and Foreign Powers. The Consuls maintained by Foreign Powers at Bucharest and Galatz were accredited to and received their Exequatur from the Sublime Porte, and no poHtical or commercial agents on behalf of the Hospodars have ever been received by Foreign Courts. The conditions of the Principalities in aU these respects have not been in any way changed by the Treaty of Paris ^ (30 March, 1856). By Article XXII, the Principahties of Walachia and Moldavia are to continue to enjoy imder the Suzerainty of the Porte and the Guaranty of the Contracting Powers the privileges and immunities of which they are in possession. . No exclusive Protection is to be exer- cised over them by any of the Guaranteeing Powers, nor is any Power to have any special right to inter- fere in their internal affairs. By Article XXIII, the Subhme Porte engaged itself to secure to the Princi- ■-^ Jliirtens, N. R. General, Tom. XV. p. 770. THE OTTOMAN EMPIRE. 105 paJities an Independent and National administration, as well as perfect liberty of worship, legislation, com- merce, and navigation ; and after the opinion of the Representatives has been taken as to the definitive organisation of the two provinces, the Porte under- took to confirm that organisation by a Hatti-Scheriff, and the Provinces were henceforth to remain under the collective guaranty of all the Contracting Powers. The Principahties are to have a National army to maintain public order and to protect their frontiers, and no armed intervention can take place without a previous agreement amongst the Powers who have signed the Treaty of Paris. §72. The Sublime Porte had remained a stranger The Da- te the proceedings of the Christian States assembled Xe Car- at the Congress of Vienna in 1815, and the waters of '^^"''^•^^■ the Danube were not subject to the regulations then made for the navigation of the Great Rivers of Eu- rope. The Treaty of Paris (30 March, 1856) may be considered as the formal Act of Reception of the Sub- lime Porte into the Fellowship of European Nations. The independence and integrity of the Ottoman Em- pire is guaranteed by aU the Contracting Powers, and every act, which may threaten its existence, is declared ' to involve a question of general interest. The Con- tracting Powers further undertake to act as Mediators in any dispute which may arise between the Porte and any of their number, and they disavow all right to intermeddle Avith the internal administration of the Ottoman Empire. They agree to respect the ancient rule of the Ottoman Porte to keep the Straits of the Bosphorus and the Passage of the Dardanelles closed against Foreign Ships of War, whilst the Porte is at peace with other Nations. The Black Sea is Neutraiisa- altogether neutralised and declared to be for ever B°"ck Sea^ 106 THE OTTOMAN EMPIRE. forbidden waters to the ships of war of all Powers, with certain exceptions as to armed vessels for pur- poses of police pursuant to a separate Convention between Russia and the Porte. The Regulations of the Congress of Vienna as to the navigation of the Great Rivers of Europe, as forming part of the Public Law of Europe, are extended to the Danube, with an additional provision, that the task of keeping open its navigation shall be confided to a Permanent Board of Seven Commissioners, four of whom are to be nomi- nated by the Riverain Powers, to wit, Austria, Bava- ria, the Subhme Porte, and Wtirtemberg, and the other three, by the three Daniibian Principahties, Walachia, Moldavia, and Servia, subject to the ap- proval of the Porte. Each of the Contracting Parties is, by the provisions of the Treaty, entitled to keep two vessels of war of fight draught of water permanently stationed at the mouth of the Danube. ThePrin §73. Montencgro, or Tzernegora, as it is styled Sfonfene- ^^ ^^^ language of the native people, is a small State, gro. which forms de jure an integral part of the Ottoman Empire. It is cafied by the Ottomans Karadagh, which has the same meaning as Tzernegora, namely, the Black Mountain ; the name of the people in their own language is Tzernegorki. Montenegro is consi- dered by the Ottomans to be a department of the Paschafick of Scutari. It was originally a district of Servia, when that Country was ruled by its own Kings, and it was governed by a Prince dependent on the Ser- vian Monarch. After the Conquest of Servia by the Ottomans (anno 1389), the Princes of the Family of Tzernoievich maintained for a considerable time their Independence, but the Ottoman Armies having over- run Albania and obtained possession of Herzegoviaa, George Tzernoievich with the consent of the people THE OTTOMAN EMl'IHE. 107 transferred the Government of Montenegro into the hands of the Bishop, and withdrew to Venice (anno 1 516). Since that period the Spiritual and the Tem- poral Powers have been vested in a Prince Bishop, who is entitled the Vladika, which signifies Prince or The via- E.uler. This Ofl&ce, although de jure elective, has prin'oe been in practice hereditary.in the Family of Petrovich ^'^ °^' since the close of the Seventeenth Century, but as every Vladika is consecrated Bishop and cannot marry, the succession has always passed to a nephew, or such other member of the family as might happen to be the next heir. The Ottomans during the Six- teenth Century made frequent inroads into the Coun- try, but failed to establish themselves in it, and it was not until a.d. 1623 that Soleiman, Pascha of Scutari, succeeded in penetrating to Tzetenie, the Capital, when the Supremacy of the Sublime Porte was in name established over the Black Mountain. The Ottomans, however, have never been able to re- main in possession of the Country, and the Montene- grins have been always ready to cooperate with the Venetians, or with the Austrians, in their war against the Porte. By the Treaty of Carlo witz^' (anno 1699) Treaty of Montenegro appears to have been left by the Otto- "'^ °^ ^' mans under the Protectorate of Venice. By the Treaty of Passarovitz (anno 1718)^" it was in terms Treaty of ceded back by Venice, and became again subject to ^tz!*^™" the Porte, and its dependence on the Porte was re- cognised by Austria in the Treaty of Sistova^^ (anno Treaty of 1 791), when the latter Power stipulated that the ^^^*°™' Montenegrins should not be molested or punished by the Porte for having declared against their proper Sovereign. Relations of a very singular kind were ^9 Schmauss, Corp. Jur. p. 1133. 3° Id. p. 1740. 3' Martens, Recueil, Tom. V. p. 244. 108 THE OTTOMAN EMPIEE. established in 1706 between the Montenegrins and the Emperor Peter the Great of Russia. The Mon- tenegrins placed themselves formally under the Pro- tection of Russia and took the oath of allegiance to the Czar, since which period it has been usual for the successor of each Vladika to receive consecration at St. Petersburg, and his consecration as Bishop has been a virtual investiture of his office as Yladika. It is stated by some writers'^ that the Vladika, who suc- ceeded in 1830, refused the Episcopal dignity and was a lay Chief The more correct account is as follows : — On the death of Pietro I. on the 30th Oct. 1830, his nephew whom he had reconunended as his successor, being only fifteen years of age, was admit- ted into Holy Orders, btit being too young to take the reins of Government, or receive the Episcopal dignity, a locum tenens was appointed, and Sr. Ivano- vich was sent from St. Petersburg to govern the Country, untU the consecration of the new Vladika. This took place at St. Petersburg on i8th August, 1833,^^ after which the youthful Vladika returned to his own Cotmtry and carried on the Government until his death in 185 1, when he was succeeded by Daniel I, The Prince who perishod by the hand of an assassm in i860. It negro'no ^^^ ^^10 late Priuce Daniel I, whose early education ^nger ^g^g carried on at Vienna and not at St. Petersburg, who once more separated the secular functions of the office of Prince from the spiritual fiuictions of the office of Bishop. His Code of Laws^^ promulgated at Tzetenie, 23 April, 1855, purports to be issued imder 3* Phillimore's International Vienna under title of Gesetzbuch Law, Tom. I. § 94. Danieli I. Fiirsten und Gebieters 33 Wilkinson's Dalmatia and von Montenegro und der Berda. Montenegro, I. p. 464. Wien, 1859. Verlag von Frie- 34 A German translation of dcrich Maiiz. this Code has been published at THE OTTOMAN EMPIRE. 109 the hand of Daniel Prince of Montenegro and Prince of Berda, the latter title being taken from the Eastern division of the Country. Since the Peace of 1 8 1 5 the Montenegrins have been constantly at war with the Ottoman Porte, and the latter Power has made the most determined efforts to reduce them to submission both m 1839 ^^^ ^^ 1852. On the latter occasion Russia and Austria employed their good offices on behalf of the Montenegrins, whilst France and Great Britain counselled the Porte to respect the de facto Independence of Montenegro, without abandoning its de jure Title over the Coun- try. The Montenegrins have, however, never ob- tained the recognition of their Independence as a Nation, and at the Congress of Paris (1856) the Otto- Congress man Plenipotentiary took occasion to declare that " the Sublime Porte considers Montenegro to be an integral part of the Ottoman Empire, but that it has no intention to alter the actual state of things in that Country."^^ 35 Protocol of Conference 25 and 26 March, 1856. Martens, N. K. General, XV. p. 736. 738. CHAPTER V. SOURCES OP THE LAW OF NATIONS. Natural and Positive Law — Natural Law of Nations — Positive or Voluntary Law of Nations — Vattel's Subdivision of Positive Law — Customary and Conventional Law — Identity of the Law of Nations with the Law of Nature, according to Hobbes and Puffendorf — The Law of Nations a Special Science, according to De Wolff and Vattel — Essential Difference between Nations and Individual Hu- man Beings — The Law of Nature — Identical Natural Law of Rude and Civilised Nations — Growth of the Positive Law of Nations — Study of the Law of Nations in England — Courts of the Law of Nations — Customary or Consuetudinary Law of Nations — Customary Relations with Non-Christian Powers Exceptional — The Primary Principles of European Public Law applied to Mahommedan States — The Diplomatic Science — Conventional Law of Nations — Views of Martens and others contrasted with those of Schmalz and others — Ortolan's View of the Effect of Conventions on General LaW' — Wheaton's Earlier and Later Views — Illustration as to Contraband of War — Declaration of Maritime Law at Paris, 1 6 April, 1856 — Preambles and Recitals of a Declaratory Character — Objections to the Idea of any Law, as such, between Nations — International Mo- rality distinct from the Law of Nations. Natural § 74- The proper and immediate subjects of the tive Law. Law of Nations being tbose political communities which are in a state of Independence, and the test of their Independence being their aptitude or capacity to discharge the obligations of Natural Society towards other political communities and to regulate the mode of discharging those obligations without the consent of any Political Superior, the rules which result from their mutual relations, and which govern their intercourse, resolve themselves into Natiiral rules and Positive rules, and the aggregate body of those rules, which admit of being enforced, constitute the Law of Nations in the most extensive sense of the term. SOURCES OP THE LAW OF NATIONS. Ill The Law of Nations accordingly divides itself into Natural or Necessary Law, and Positive or Instituted Law/ §75. The Natural Law of Nations is founded on Natural the Nature of Independent States, as such, and is the Nation. result of the relations observed to exist in Nature be- tween Nations as Independent Communities.^ The Positive Law of Nations, on the other hand, is based on the consent of Nations, and is the result of the relations institvited between them by their own free wUl. The sanction of the Natural Law of Nations is found in the fact that its violation terminates the ex- istence of an Independent State, as such. The sanc- tion of the Positive Law of Nations is found in the isolation of the State which disregards it. The obliga- tion of the former is involuntary, whereas the obhga- tion of the latter is consensual,^ and the consent of Nations to it is either substantially evidenced by ' Natural Law, according to A priori, si ostendatur rei alicu- Puffendorf, is that which is bo jus convenientia aut disconveni- exactly fitted to suit with the entia necessaria cum natura ra- rational and social nature of man, tionali et sociali. A jjosteriori that human kind cannot maintain vero, si non certissima fide, certe an honest and peaceful Fellowship probabiliter admodum, juris na- without it. Positive Law, on the turalis colligitur id, quod apud other hand, he writes, is some- omnes gentes, aut moratiores times called by the name of Vo- omnes tale esse creditur. Nam luntary, because no positive law universalis effeotus universalem has such an agTceableness with requirit causam ; talis autem ex- Human Nature as to be neces- istimationis causa vix ulla vide- sary in general for the preserva- tur esse posse prseter sensum tion of mankind, or as to be ipsum, communis qui dicitur. known or discovered without the Grotius de Jure Belli et Pacis, help of express and peculiar pro- L. I. c. i. § 12. mulgation. Law of Nature and 3 Pacto obligamur ; lege obli- of Nations, B. I. c. 4. § 18. gati tenemur. Pactum obligat ^ Esse autem aliquid juris na- per se ; lex obligatum tenet vir- turalis probari solet ab eo quod tute pacti universalis de prse- prius est, turn ab eo quod poste- standa obedientia. Hobbes de rius, quarum probandi rationum Civ. Irnperium, c. 14. § 2. ilia subtilior est, hsec popularior. 112 SOUKCES OP THE LAW OF NATIONS. their unvarying practice, or has been formally re- corded in some Public Act or Convention. Positive or § 76. Grotius in constructing his system of Public Lawof"^'^ Law had perceived that certain rules of International Nations. Life, wMch were universally observed, could not be fairly deduced from any admitted principles of Na- tural Right. He concluded accordingly that they had been introduced by the Consent of Nations, and rested upon Custom and tacit Compact (moribus et pacto tacito introductum. *) It was this entire Body of Law which Grotius comprised under the head of Jus Gentium Voluntarium or Jus Constitution.^ De Wolff, on the other hand, distinguished the Jus Volun- tariuTYi from the Jus Pactitium and Jus Consuetudi- narium, and whilst Grotius considered the Voluntary Law of Nations to be based upon the general consent of Nations as evidenced by their practice, De Wohf regarded it as a body of rvdes deduced from the natiu-e of the Social Union amongst Nations, and from the operation of which no civilised Nation can withdraw itself. De Wohf accordingly held the Vot luntary Law of Nations to be universally binding upon civihsed Nations, whilst the obHgation of the Cus- tomary Law of Nations was limited to those Nations, amongst whom it had been established by long usage. De Wolff in establishing the foimdations of that species of the Law of Nations which he termed Vo- 4 Sed sicut cujusque civitatis 5 Grotius divided Voluntary jura utilitatem suse civitatis re- as distinguished from Natural spicIuDt, ita inter civitates aut Law, into law directly instituted omnes aut plerasque ex consensu by God and law instituted by jura quoedam nasci potuerunt, et Man, but he considered the insti- nata apparent, quse utilitatem tuted Law of God, as far as Na- respicerent non coetuum singulo- tions are regarded, to be confined rum, sed magnje illius universita- to the Jewish Nation. De Jure tis. De Jure Belli et Pacis, Belli et Pacis, L. I. c. i. $ 15, 16. Proleg. § 17- SOURCES OF THE LAW OF NATIONS. 113 luntary, had assumed the existence of a Great Com- monwealth {Civitas MaximaY of which all civilised nations were members. The Jus Gentium Volunta- rium accordingly occupied a place in the Great Com- monwealth analogou-S to that which the Jus Civile holds in Individual States. Vattel, however, has not followed De Wolff in his fiction of a Great Commonwealth of Nations ; he holds that fiction to be neither very just nor very solid, but he has retained the division of Voluntary Law as dis- tinct from Customary and Conventional Law. Vattel however does not agree with De Wohf in the grounds upon which the latter rests the obligation of Voluntary Law; on the contrary, he regards it as a branch of Positive Law derived from the presumed consent of Nations, whilst he rests the Conventional Law upon their exjjress consent, and the Customary Law upon their tacit consent. As there can be no other mode of deducing any law from the wiU of Nations, there are only, he says, these three Species of Positive Law. § 77. This threefold subdivision of the Positive Law Subdivi- of Nations, which Vattel has popularLsed, is objection- gSthre i,aw. able in principle, and it is at the same time prac- tically inconvenient. It is objectionable in principle, as it involves what Logicians term a cross-division, for Conventional and Customary Law are evidently subordinate branches of Voluntary Law, and it will tend rather to confuse than to elucidate the subject, if we should class them by the side of Voluntary Law as coordinate Species of one and the same Genus. In the second place, the threefold subdivision is prac- tically inconvenient, for certain rules of international '' Civitas, in quam Gentes coi- Civitas Maxima. Jus Gentium, visse intelliguntur, et cujus ipsse § 10. sunt membra, sive cives, yocatui- PART I, I 114 SOURCES OP THE LAW OF NATIONS. intercourse which Vattel, following the authority of De Wolff, ranks under the head of Voluntary as dis- tinguished from Conventional and Customary Law, would seem rather to partake of the character of Na- tural Law, as they are derived from the natural rela- tions of independent political societies. For instance, in discussing the foundation of Voluntary Law Vattel says,'^ " It is therefore necessary on many occasions that Nations should suffer certain things to be done, though in their own nature unjust and condemnable, because they. cannot oppose them by open force with- out violatmg the liberty of some particular States, and destroying the foundation of their natural society. And since they are bound to cultivate that Society, it is de jure presumed, that all Nations have con- sented to the principle which we have just established. The rules which are deducible from it constitute what De Wolff calls the Voluntary Law of Nations." It is obvious, however, that Nations are under a na- tural obligation to refrain from all acts which tend to destroy their Natural Society. A scrupulous respect for the independence of Individual States, evidenced by a systematic abstinence from all encroachments upon that independence, is a necessary condition of Permanent Fellowship amongst Nations. Non-inter- ference to such an extent would thus seem to be a natural law of international life, and it is superfluous to presume a consent of Nations as an authority for the rule of such Non-interference. On the contrary, we should rather weaken the sanctions of such a rule, if we were to class it under the head of Voluntary as opposed to Necessary Laiv, and were to suppose it to rest upon the will of Nations rather than to be essen- tial to their Fellowship. Volimtary Law, as a matter of 7 Droit des Gens, Pr^liminaires, § 21. SOURCES OP THE LAW OF NATIONS. 115 fact, ends where the Independence of Nations becomes imperilled, and it is not an optional matter to respect the liberty of individual Nations, when a disregard for that Hberty would entail the dissolution of interna- tional Society. ^78. The identification of the Voluntary Law of Customary Nations with the entire body of Instituted or Positive yentS"' Law, and the employment of the term Voluntary Law '^''''^• to designate a Genus of which Conventional and Cus- tomary Law are the Species, has been approved by the more distmguished American Jurists. Mr.Wheaton® observes, that it is almost superfluous to point out the confusion in Vattel's enumeration of the different species of International Law, which might easily have been avoided by reserving the expression Volun- tary Law of Nations to designate the Genus, includ- ing aU the rules introduced by positive consent for the regulation of international conduct, and divided into the two species of Conventional and Customary Law. To the same efiect Mr. Justice Story has ob- served, " By the Law of Nations we understand not merely that portion of Pubhc Law which is generally recognised amongst Nations, (as seems to have been the prevailing use of the phrase in the Roman Code,) but that portion of the Pubhc Law which regulates the intercourse, adjusts the rights, and forms the basis of the Commercial and Pohtical Relations of States with each other. Perhaps the most appropriate name would be International Law, Jus inter Gentes. It has in this view been correctly subdivided into three sorts, first, the Natural or Necessary Law of Nations, in which the principles of Natural Justice are applied to the intercourse between States ; secondly, the Cus- tomary Law of Nations, which embodies those usages 8 Elements of International Law, c. i. § 9. I 2 116 SOURCES OF THE LAW OP NATIONS. which the continued habit of Nations has sanctioned for their mutual interest and convenience ; and thirdly, the Conventional or Diplomatic Law of Nations, which embraces positive compacts by treaties and conven- tions between Nations, and derives its sole obligation from the same sources as other contracts. Under this last head many regulations will now be found which had first resulted from custom or a general sense of justice, and are now made of positive obliga- tion for the purpose of preventing National disputes and collisions^." Identity § 79. The Natural Law of Nations is capable of of Nations' being distinguished from the Law of Nature, which ^*^*^^ governs the mutual relations and the intercourse of ture, ac- individual humau bsiugs. Hobbes^" and Puffendorf Hobbes have maintained the identity of the rules, which dorf""*^™ result from the natviral relations of States, with those which result from the natural relations of individual men, considering Nations to be aggregate bodies of human beings, having in the mass rights and obliga- tions, which differ only in degree from those which the individuals have in their several capacities. Ac- cording to this view there is no distinct Science of the Law of Nations. But these writers in maintain- ing that Natural Law, such as it is in reference to individual human beiags, is identical with the Natural Law which governs the intercourse of Nations, have not discriminated sufficiently between Law and the Principles of Eight which are embodied in Law. The Principles of Eight (Droit) are beyond doubt invaria- ble, but the mode in which those principles are ap- 5 Story's Miscellaneous Writ- c. 14. § 4. ings, p. 536. " On the value and '■ Puffendorf, Law of Nature importance of Legal Studies." and of Nations, L. III. c. 3. '° Hobbes De Civ. Imperium, § 23. SOURCES OP THE LAW OF NATIONS. 117 plied and developed undergoes infinite variations in accordance with the varying nature of the subjects to which they must be adapted. Law is, in fact, not an abstract principle of Duty or Right, but a System of applied principles. § 80. Barbeyrac, the translator and commentator The Law of both of Grotius and of Puffendorf, in combating the special notion of a Positive Law of Nations, which he treats ^ordint to as " a chimsera," and in contending that the principles De Woiff and rules of the Law of Nations are the same as those of the Law of Nature, is constrained to admit that there is a difference with respect to the mode in which those principles are applied in the two Laws^^ De Wolff developed this doctrine more fully, perceiving that Nations were Composite Bodies, having in their collective capacities a Moral Being of their own, which in its nature and essence differed in many respects from the Moral Being of the individuals which com- posed the Nation ^^- Vattel followed in the direct track of De Wolff: " A State," he writes, " is a subject very different from an individual of the human race, from which circumstance, pursuant to the Law of Nature itself, there result in many cases very dif- ferent obligations and rights, since the same general rules applied to two subjects cannot produce exactly the same decisions when the subjects are different, and a particular rule, which is perfectly just with respect to one subject, is not apphcable to another subject of quite a different nature. There are many cases, there- fore, in which the Law of Nature does not decide between State and State, as it would between Man ' ' Note on Grotius, De Jure plicatio eorundem ad Gentes, Belli et Pacis, L. I. c. i. § 14. quse diversitatem quandam parit '- Jus Gentium, Prolegomena in eo, quod infertur, quatenus § 3. Alia enim sunt principia natura Gentis non est eadem cum Juris Naturae, alia vero est ap- natura liumaua. 118 SOURCES OF THE LAW OF NATIONS. and Man. We must therefore know how to accom- modate the application of it to different objects, and it is the art of thus applying it with a precision founded on right reason, which renders the Law of Nations a distinct and special Science ^'- Essentiai § 8i- -A- Nation is essentially an Independent Po- beTween'^ Htical Society, whereas an individual human being is Nations a Dependent Member of a Political Society. It is ob- and Indi- • i p i • • • i i • i vidu.li vious thereiore, that certain prmciples which may be bei^g" apphed absolutely to the intercourse of Nations by reason of their mutual independence, can only be ap- plied sub onodo to the intercourse of individual citizens; for instance, the principle of self-preservation is appH- cable to the mutual relations both of Nations and of individual human beings, but its application resiilts in very different rules in the one case and in the other. Thus a Nation may freely confederate with other Nations against a common neighbour, but the prin- ciple of self-preservation may not be carried out in the same absolute manner by the individual members of a Pohtical Society. What would be a perfectly law- ful League in the case of Nations, might be an unlaw- ful combination amongst individual citizens. Again, the principle of suum cuique is apphcable in the most absolute mamier to Nations, but its appHcation to the individual members of a Pohtical Society is modified by a variety of considerations arising out of the rela- tions which have been established between the indivi- duals and the Society of which they are members, and is conditional upon its adaptation to those relations. The Law §82. Man is sometimcs spoken of as living in a state of Nature when he is living under the rudest forms of physical life, and the law of his existence under such forms is by certain writers laid down to '} Druit ties Gcus, Prcliminaircs, § 6. '4 Wolff, Prolegomena, § 3. of Nature. SOUKCES OF THE LAW OP NATIONS. 119 be the Law of Nature applicable to human beings. Such a view of the Law of Nature would indeed harmonize in substance with the Jus Naturale of Ulpimi, who defines it to be that Law which Nature teaches all animals.^* In a stiU looser sense men speak of the Law of Nature in regard to inanimate things. Thus it is said to be the Law of Nature that vegetables grow with their roots downwards and their stalks upwards, or to use the more ac- curate language of art, " that a seed in vegetating directs its radicle downwards and its plumule up- wards." It is likewise said to be the Law of Na- ture that matter lighter than water floats upon its surface, as weU as that water rises to the level from which it flows. But when men speak of the Law of Nature in this sense, they only mean to de- note an universal fact, and the conformity of indivi- dual cases to the general rule is that which is said to constitute the Law of Nature. Thus the Jus Natu- rale of the Roman Jurists represents httle more than a general fact traceable to the instinct of physical hfe, and the illustration which is given, e. g. conjunctio maris et fcemincB,^^ is applicable to the vegetable as well as to the animal world. §83. The Law of Nature, in the sense in which identical Writers on International Jurisprudence apply the L^w^of term, corresponds in the main not with the Jus Na- "^Y^f. ^"<* ' '- . . T-- Civilised turale of the Roman Jurist, but with that division of Nations. law which is described in the Institutes'^, as " the law which Natural Reason teaches all mankind." Whether we regard man in a rude state of what is '4 Jus Naturale, quod natura apud omnes pcrajquc custoditur, omnia animalia docuit. Inst, vocaturque Jus Gentium, quasi L. I. Tit. II. quo jure omncs gentes utuntur. '5 (^uod Naturalis Ratio in- Inst, L.I. Tit. 11. tcr omncs homines constituit, id ''• Just. Inst. L. I. Tit. 10. 120 SOURCES OF THE LAW OF NATIONS.. termed savage life, or in a refined state of what is called civilised society, the one condition being equally natural with the other, the law which Reason sug- gests to him in either case will be equally the Law of Nature. It is accordingly not necessary to adopt a distinction which has been introduced by certain writers upon the authority of Von Ompteda^* be- tween the Absolute Natural Law and the Modified Natural Law. Mr. Reddie^' in commenting upon this subdivision of Natural Law, has happily observed, that the Inter- national Law of civilised Nations is as natural, and results as much from the legal relations actually existing in nature amongst those Nations as the International Law of rude Nations, and that as Von Ompteda rests his Modified Natural Law of States upon the general conviction of civilised Na- tions, there is really no ground for propounding it as a separate species of International Law distinct from what is viewed as the Primary Natural and Necessary Law of Nations. Growth ^84. It was not untU the Peace of Westphalia sitive^Law that Sufficient materials were forthcoming for reduc- of Nations, ^j^g -^^^q ^ systcm the Positive or Inatituted Law of Nations. The principal writers durmg the Seven- teenth Century had treated almost exclusively of the Natural Laiv of Nations, and the followers of Pufien- dorf, who expounded the Law of Nations entirely from the Law of Nature, were at the end of that Century the predomiiaant school on the Continent of Europe. The contemporaneous English School of International Jurists was, on the contrary, always of a practical character. This was partly attributable to those common causes, whatever they may be, wliich if' Litt. des Volkerrechts, 1758. '7 Inq. iu Internat. Law, p. 127. SOURCES OP THE LAW OF NATIONS. 121 give a peculiar practical turn to the course of English thought on all subjects, but it was partly due to the existence of a special jurisdiction in England which took cognizance of questions touching the Jus inter Getites. It has been weU observed by Mr. Chancellor Kent^^ in reviewing the growth of the existing sys- tem of International Law, that " many of the most important principles of pubHc law have been brought into use and received a practical application, and been reduced to legal precision since the age of Grotius and of Puffendorf, and we must resort to the judicial decisions of the Prize Tribunals of Europe and in this country (the United States of North America) for in- formation and authority on a great many points on which all the leading Text -Writers have preserved a total silence." From the Thirteenth to the Sixteenth Century, the controversies of Nations had been ad- judged by the rules of the Civil Law, and Albericus Gentihs, the earhest Jurist who rendered any essen- tial service to International Law as a Science, in his Treatise de Jure Belli, which appeared in England towards the close of the Sixteenth Century, supports his positions of law by reference to the Civil Law of the Romans, and appeals to the authority of the Commentators on that Law. Grotius himself has re- course to the rules and distinctions of the Roman Law, sometimes as illustrating the appHcation of the principles of Natural Justice, at other times as sup- plying the best evidence of the usage of mankind, or at least of that which he conceived to be the most civil- ised portion of it. For instance, Grotius supported his position, that no Nation could acquire rights of property over the sea, so as to exclude others from fishing in it, by reference to the Roman Law, shew- 18 Commentaries on American Law, Part I. § 71. 122 SOURCES OP THE LAW OP NATIONS. ing from the Digest and the Text -Writers, that there had always been a rule founded on common consent in restramt of the Law of Nature with regard to prior occupancy, whereby the open sea was precluded from so being entirely reduced into possession by any Nation, as to found in it absolute and exclusive rights of property. " Wherever this Law of Nations is in force and has not been repealed by common consent, the most inconsiderable part of the sea, nay, though it be almost enclosed by the shore, can never be the property of any particular people."'^ study of § 85. The study of the CivO. Law in England had Nation^in always becu fostered by the Universities of Oxford England, g^j^^ Cambridge, at a time when the Courts of West- minster undervalued and disparaged it, and a privi- leged career was preserved for the Civihans in the High Court of Admiralty, where a knowledge of the Unwritten Law of the civilised World was of necessity maintained to meet the exigencies of the cases which might come before it. The threefold division of the Law of Nations into Natural, Conventional, and Cus- tomary, was adopted as early as the middle of the Seventeenth Century by Dr. Richard Zouch, who was at that time Judge of the High Court of Admiralty, and at the same time Regius Professor of Civil Law at Oxford. His Treatise on Fetial Law, or as he termed it. Jus inter Gentes,^ which appeared within a quarter of a centiuy after the great work of Grotius, although small in bulk, was in substance very complete. His words are precise, " Cum multi diversis tempori- bus idem affirmant, id ad causam universalem referri debet, quae alia esse non potest, quam recta conclusio '9 De Jure Belli ct Pacis, L. II. sive Juvis inter Gcntes, ct qiife- c 3. § 10. 3. stionum de codcm explicatio, ^<^ Juris ct Judlcii Fctialis, anno 1650. SOURCES OP THE LAW OF NATIONS. 123 ex Naturae principiis proveniens, aut communis ali- quis consensus, e quibus ilia Jus Natures indicat, hie Jus Gentium. Deinde prseter mores communes, pro Jure etiam inter Gentes habendum est, id quod Gentes singulse cum singuhs inter se consentiunt ; utpote per pacta, conventiones, et foedera, cum communis reipub- Hcse sponsio legem constituat, et populi universi, non minus quam singuli, suo consensu obhgentur." Dr. Zouch was the first to adopt the expression Jus inter Gentes in preference to that of Jus Gentium. In later times the Chancellor d'Aguesseau has suggested the substitution of the term Droit entre Gens for Droit des Gens. Neither of these modifications in the ter- minology of the Science has taken root, and it was reserved for Mr. Bentham in more modem times to suggest the phrase " International Law,"^^ which bids fair to maintain itself in permanent use. ^86. It has been the pecuhar duty of the Tribunals Courts of of the Law of Nations to investigate with precision Nation! ° the Jus Consuetudinarium, and to separate the fluc- tuating institutions of particular Nations from the esta- bhshed practice of mankind. " It is my duty," says one of the most distingmshed administrators of the Law of Nations, (Lord StoweU,) "not to admit, because one Nation has thought fit to depart from the common usage of the world and to meet the notice of mankind in a new and unprecedented manner, that I am on that account under the necessity of acknowledging the efficacy of such a novel institution, merely be- ^i Heifter considers the term h6lds to embrace the mutual rela- '' International Law" not to ex- tions of individuals, as well as of press the idea of the Jus Geu- States, so far as concerns their tium of the Roman Jurisconsults, respective rights and obligations, The former he considers to be having everywhere the same identical with the external Pub- character and effect, independent- lie Law of States; the latter he ly of all positive institutions, § i. 124 SOURCES OF THE LAW OF NATIONS. cause general theory might give it a degree of coun- tenance independent of all practice from the earliest history of mankind. The institution must conform to the Text -Law and likewise to the constant Usage of the matter, and when I am told that before the present war, no sentence of this kind has ever been produced in the annals of mankind, and that it is produced by one Nation only in this war, I require nothing more to satisfy me that it is the duty of this Court to reject such a sentence as inadmissible."^^ The same accomplished Jurist has also noted on another occasion, how the practice of Nations controls the application of abstract principles. " It has been contended," he says, " that a sentence of condemna- tion passed before the tribunal of an ally upon a vessel lying in a neutral port is perfectly legal both on principle and authority. It is said, that on prin- ciple the security and condemnation of the capture is as complete in a neutral port, as in the port of the beUigerent himself On the mere principle of secu- rity it may perhaps be so, but it must be remembered that this is a matter not to be governed by abstract principles alone. The use and practice of Nations have intervened and shifted the matter from its foun- dation of that species. The expression winch Grotius uses on these occasions, jp^act/^'^ gentihus, is, in my opin- ion perfectly correct, intimating that there is an use and practice of Nations, to which we are now expected to conform."^ Customary ^ 87. The Jus Consuetudinavium of Nations is to be tudinary*^ gathered from a variety of sources. Ancient coUec- NaTio'na ^ous of Maritime Usages, such as are to be found in the Consolato del Mare and the Roles d'Oleron supply •*^ The Fladoyen, 1 Eobiiison's Reports, p. 141. 23 The HeDrich and Maria, 4 Eobinson's Reports, p. 54. SOUKCES OF THE LAW OF NATIONS. 125 evidence of a very early practice. Thus the Rule that enemy's goods found on board of neutral vessels may be captured and condemned as Prize of War is supported by a long estabhshed practice, of which evidence has been recorded in the Consolato del Mare, c. 273. On the other hand, a consuetudo may be in- ferred from a succession of Public Treaties, in which exceptions to it have been made for temporary pur- poses, or in which regulations have been agreed upon as to the manner of enforcing it. Thus there are numerous instances of Treaties since the middle of the Seventeenth Century, whereby Nations bound them- selves to make exception towards one another in re- gard to the practice of confiscating the goods of an enemy found on board of the vessel of a Mend. Such exceptions, however, were matters of Treaty- En- gagement, and when the Treaty expired, the excep- tional engagement ceased, and the general rule came into operation again. So likewise the consuetudo under which the Sound Dues were levied by Denmark upon all vessels passing into or out of the Baltic by the narrow seas of the Sound or the Belts, was matter of inference, as against the Nations of Europe, from a series of Treaties commencing in the Fourteenth Cen- tury, in which the European Powers have tacitly ad- mitted the right of Denmark to levy tolls by nego- ciating for and agreeing to a tariff of the toUs. Again, a consuetudo may be directly recognised by the Eu- ropean Powers in a formal Convention, such for in- stance as the Convention of London 13 July, 1841, whereby the Five Principal Powers of Europe recog- nised the ancient Iliile of the Ottoman Porte to keep the passage of the Straits of the Dardanelles closed against foreign vessels of war, whilst the Ottoman Porte is at peace, and declared their unanimous de- with lion Christian Powers exeep- 126 SOURCES OF THE LAW OF NATION?. termination to conform themselves to it. Again, a consuetudo may be inferred from the Ordinances of Princes on matters touching their relations with other Powers, where an uniformity of principle is observed to pervade them, and their enactments zn pari materia are identical. Relations § 88. Saviguy^ has observed, that " there may exist between different Nations a common conscious- ness of Right similar to that which engenders the tionai. Positive Law of a particular Nation. The foundation of this community of feeling rests partly on a com- munity of origin, partly on connnon rehgious convic- tions ; and upon this Community of feeling has been built up a Positive Law of Nations, as it especially exists amongst the Christian States of Eiu-ope. But this Positive Law of Nations, in his opinion, is only imperfect Positive Law ; partly, on account of its in- determinate character ; partly, because it has not that soHd basis which the Power of the Government and the authority of the tribunals gives to the Positive Law of particular States. The progress of Civili- sation, grounded on Christianity, has led the Nations of Europe to observe a rule analogous to this Posi- tive Law of Nations in their dealings with Non- Christian Powers, from whom they do not always expect a similarity of conduct ; but this extended apphcation of the rule is of a purely moral character, and is not in the nature of Positive Law." The Con- suetudmary Law of Christendom has been accord- ingly not invoked as the governing rule of inter- course between Christian and Mahommedan Powers Avith the same absoluteness as between Christian Powers. In matters however of substance, and where a primary question of International Right is M System des heutigen Romischen Eechts, L. I. c. 1 1. § ii. SOURCES OF THE LAW OP NATIONS. 127 involved, the European Powers have enforced agamst the Ottoman Porte and her dependencies on the Barbary Coast, the same rule of conduct which has been accepted amongst Christian Nations. " On many accounts," says Lord Stowell, " they are un- doubtedly not strictly considered on the same footing as European Merchants ; they may on some points of the Law of Nations be entitled to a very relaxed application of the principles established between the States of Europe, holding an intimate and constant intercourse mth one another. It is a Law made up of a good deal of complex reasoning, although derived from very simple rules, and altogether composing a pretty, artificial system, which is not famihar to their knowledge or their observance. Upon such consider- ations, the Court has on some occasions laid it down that the European Law of Nations is not to be apphed in its fuU vigour to the transactions of per- sons of the description of the present claimants, and residing in that part of the world, (i. e. Mahommedan merchants resident in the kingdom of Morocco.) But on a point like this, the breach of a blockade, one of the most simple and universal operations of war in aU ages and countries, excepting such as are merely savage, no such indulgence can be shewn. It must not be understood by them, that if an Euro- pean army or fleet is blockading a town or port, they are at Kberty to trade with that port. If that could be maintained, it would render the obHgation of a blockade perfectly nugatory. They in common with aU other Nations must be subject to this first and elementary principle of blockade. It is not a new operation of war ; it is as old and general as war itself The subjects of the Barbary States could not be ignorant of the general rules applying to a 128 SOURCES OF THE LAW OF NATIONS. blockaded port so far as concerns the interests and duties of neutrals ^°." But in a matter oi form which involved only a secondary question of International Right, the same eminent Jurist upheld the transfer of a ship which had been captured by an Algerine Cruiser, and subsequently sold bond fide to a Christ- ian Merchant, although it was not established that the ship had been formally condemned by the sen- tence of a Prize tribunal. The Court presumed from the fact that the sale was authorized by the State, and as no remonstrance had been made against it by the owner of the vessel, that there had been adequate grounds for the confiscation of the vessel according to their notion for some breach of Treaty-Regulations, ", as it is by the Law of Treaty only that these Nations hold themselves to be bound, conceiving (as some other people have foolishly imagined) that there is no other Law of Nations, but that which is derived from Positive Compact and Conventions^ TheDipio- § 89. The Conventional Law of Nations is some- "tnce. °' times spoken of as the Diplomatic branch of the Law of Nations, and Diplomacy, in accordance with this view, is the Science which is conversant with Nego- tiations and Treaties. This distinction has not been hitherto noted, and Diplomacy has been in general regarded merely as an Art. It must be admitted that the practice of Sovereigns in the selection of Diplomatic Envoys has given some colour to the pre- judices of mankind against the very name of Diplo- macy ; and an able Diplomatist has come to be a proverbial designation for a skilful negotiator, who can bring about an arrangement quocvnque modo in favour of the party whose interests he represents. '5 The Hui-tige Hane, 3 Robinson's Reports, p. 325. ^''' The Helena, 4 Rob. p. 4. SOURCES OF THE LAW OF NATIONS. 129 But Diplomacy as a Science has higher ends in view, and the true art of the Diplomatist is shewn in easing the friction of International intercourse, and in smoothing the difficulties which may occasion- ally embarrass that intercourse, either by a candid interpretation of existing Treaty- engagements, or by negociating the adjustment of a fluctuating practice upon a sound basis of Conventional Law. For this purpose however, the Diplomatist requires not merely a technical knowledge of the general rules which govern the intercourse of Nations, but a perfect ac- quaintance with the principles involved in those rules, and which must be respected in the appHcation of them ; and it is indispensable for his success in administering the Law of Nations, that he should have mastered the elements of its Philosophy. § 90. " Treaties," it has been well observed by an Conven- American Statesman, " may be considered under oraationr several relations to the Law of Nations according to the several questions to be decided by them. They may be considered as simply repeating or affirming the General Law^' : they may be considered as making exceptions to the General Law, which are to be a particular Law to the parties themselves : they may be considered as explanatory of the Law of Nations on points where its meaning is otherwise obscure or unsettled, in which case they are first a Law between the parties themselves, and next a sanction to the General Law, according to the rea- sonableness of the explanation, and the number and character of the parties to it : lastly, treaties may be regarded as forming a voluntary or positive Law of 2? TKfe pxeambles or recitals of the party who makes them, of Treaties furnish sometimes Edinburgh Keview, LXXVIT. p. valuable evidence in this respect, 312. when they are against the interest PAUT I. K 130 SOUECES OF THE LAW OP NATIONS. Nations. Whether the stipulations of a treaty are to be considered as an affirmance, or an exception, or an explanation, may sometimes appear upon the face of the treaty ; sometimes being naked stipulations, their character must be determined by resorting to other evidences of the Law of Nations. In other words, the question concerning the Treaty must be decided by the Law, not the question concerning the Law by the Treaty ^^." Mr. Madison's observations in the above passage are valuable, as they show that trea- ties may be operative in very different ways. For instance, the effect of a treaty, if it is of a restrictive character, must be limited to the parties between whom the compact is made ; ff on the other hand it should be of a beneficial character, and should relax the rigour of the customary Law in their mutual favour, its operation may extend to other Nations. But this indirect result wiU depend not upon the force of the Convention as a Contract, for that only binds the parties to it, bvit on certain considerations of Right (Jus) dehors the treaty ; and which may involve the nicest questions of International Juris- prudence. Views of § 91. Mr. Reddie, in his Inquiries in International and'^o'thers Law^^ has Suggested, that German writers generally, contrasted, g^j^j particularly Martens and Kliiber, have, in framing or constructing the science which they have denomi- nated Droit des Gens Moderne de I'Europe, ascribed too much to express Conventions or Treaties, as sources of this Law. Their language'" is considered by him to imply, that besides the obHgation which Treaties impose upon the immediate parties to the 28 Madison's Examiuation of national Law, pp. 157, and 339. the British Doctrine, London, 3° Martens, Precis du Droit 1806, p. 39. desGens, Introduction, 5,. 7. KlU- ^9 Reddie, Inquiries in Inter- ber, Droit des Gens, § 2. .•SOURCES OF THE LAW OF NATIONS. 131 contract, some more General Law may be gathered from them, resulting from a concurrent mode of con- tracting, which will be binding upon Nations which are not parties to the treaties. " It is obvious, however, that no Common or General Law of Nations can be derived from the particular Treaties or Conventions of Nations, however similar they may be. Those treaties can be used for the construction of the Sci- ence, only in order to ascertain what has been pro- poimded or recognised in them as their basis, and that basis is nothing else than Custom or Usage." Such is the reply which is given by an opposite school of writers represented by the Prussian Privy Councillor Schmalz^^ and the anonymous author of the Traite Complet de Diplomatic. The former writer observes that Leibnitz, whose Codex Diplo- maticus may be regarded as the foundation of the Diplomatic Science, " commenced his collection of treaties not with the idea that the contents of these treaties would supply a body of International Law, but because there would be found in them preemi- nently what principles the European Powers have recognised as right and just, or what they have pro- nounced or held to be so recognised, and to be un- questionable." The author of the Traite Complet de Diplomatic in a similar manner says, " Cependant il est Evident, qu'on ne sauroit former un droit positif de I'ensemble des Conventions particuliferes des peu^ pies, quelque semblables qu'eUes fussent. Ces pactes ne peuvent servir de mat6riaux pour ^difier la sci- ence, s'ils ne montrent ce que Ton y a reconnu pour base ; et cette base n'est autre chose, que la cou- tume^l" 31 SchmalZjEuropaisches Vblk- 3^ Traite Complet de Diplo- errecht, B. I. § 10. and § 28. matie, T. I. p. 41. K 2 132 SOURCES OF THE LAW 0? NATIONS. The difference is important between these two schools of Jurists. The former regard the principles as commending themselves to our acceptance by rea- son of their recognition in the treaties ; the latter consider the treaties to demand our respect, so far as they fximish evidence of a very general and long pre- vailing usage. Ortolan's .§92. M. Ortolan in his work on the Diplomacy of effects of the Sea^', has combated Mr. Reddie's criticisms, and tionron" h^^ vindicated the doctrine of Martens and EQtiber, General from what ho Considers to be a misapprehension of its true import. M. Ortolan holds that those eminent pubhcists did not pretend that the stipulations of a particular treaty could be a rule binding upon any but the parties to it, but that a series of treaties concluded at different epochs between different civilised Nations, exhibited an uniformity of principle in their stipula- tions, from which a theory of what is generally prac- tised amongst Nations may be formed by abstraction, and this theory constitutes the Conventional Law of Nations. M. Ortolan then proceeds to cite a passage from one of the authors criticised by Mr. Reddie, in which it is contended that " the principle which is established in the greatest number of treaties ought to be regarded as the rule, and that which i^ found in the least number as the exception. That the ques- tion in dispute ought to be decided according to the principle contained in the greatest number of trea- ties, particularly if the greatest number are at the same time the most recent. For it may be inferred from this circumstance, that Nations have gradually aban- doned an old principle for a new principle, and that 33 Begles Internationales et Diplomatie de la Mer, Tom. II. Ap- pendice, p. 442. SOURCES OF THE LAW OF NATIONS. 133 by a change of principles they have worked a change in the Law of Nations." § 93. Wheaton, in a surdlar manner, in the earlier wheaton'a editions of his Elements of International Law, seems laterviews. to have been inclined to assign to treaties too import- ant a part in the formation of General International Law. " The effect of Treaties and Conventions be- tween Nations," he observes, " is not necessarily re- stricted, as Eutherforth has supposed, to those States which are direct parties to these compacts. They cannot, indeed, modify the original and preexisting International Law, to the disadvantage of those States which are not direct parties to the particular treaty in question. But if such a treaty (i) relaxes the rigour of the primitive Law of Nations in their favour, or (2) is merely declaratory of the preexisting Law, or (3) furnishes a more definite rule in cases where the practice of States has given rise to con- flicting pretensions, the Conventional Law thus intro- duced is not only obligatory as between the contract- ing parties, but constitutes a rule to be observed by them to all the rest of the world^*. In support of this view, Wheaton refers to his History of the Law of Nations, and the remarks therein contained upon the Maritime Convention concluded in 1801 between Conven- Russia and Great Britain, which put the seal to the 1801 be- dissolution of the Second Armed NeutraUty of the *^'^°j^"'- Baltic Powers. ^' C^^eat Bri- A difficulty at once suggests itself in the way of the first and third of Wheaton's positions, namely, that as International obUgations are under the Com- mon Law of Nations reciprocal, if a State under H Elements of International 35 History of the Law of Na- Law, third edition, Philadelphia, tions, p. 14. § 9. pp. 408 — 420. 1846, part I. c. I. s. XVI. § 7. 134 SOURCES of THE LAW OF NATION'S. treaty-engagements with one Power, which come un- der either of those heads, is bound by the Common Law of Nations to observe the rule which accords with those treaty-engagements, not merely in its in- tercomrse with that Power, but in its intercourse with aU other Powers, those other Powers will be bound to reciprocate the rule, and they will thus be indi- rectly involved in engagements to which they are not consenting parties. This anomaly will be still more striking in the case, where the treaty-engagements are on a subject, " where the practice of different States has given rise to conflicting pretensions," and the States which are not parties to the treaties should be those which pursue a different practice from that, which the treaty has mtroduced between the con- tracting parties. lUustra- $94- In regard to Wheaton's second position, the Contra- Law of Contraband of War may be referred to by way of illustrating his mode of applying the prin- ciple. By the third section of the third Article of the Convention of 1801, Great Britain and Russia agTeed to the same definition of Contraband of War which had been agreed upon between the two Powers in the temporary Convention of 1797. Wheaton^° observes that this section does not contain " the con- cession of any special privilege to be thenceforth en- joyed by the contracting parties only, but the recog- nition of an universal and preexiating right, which, as such, could not justly be refused to any other Independent State, " and that " it must be taken as laying down a general rule for all farther discussions with any power upon the subject of MiHtary and Naval Stores, and as establishing a principle of law which was to decide universally on a just interpre- 35 History of the Law of Nations, p. 415, 416. band of War. SOURCES OF THE LAW OF NATIONS. 135 tation of the technical term of Contraband of War." The doctrine of Bynkershoeck^® does not harmonize Bynker- with Wheaton's view, for Bynkershoeck holds, that doctrine. there is a Common Law of Nations as to Contraband of War, which has been deduced from reason and usage, and the usage of mankind is evidenced by the tenor of an almost perpetual series of treaties and ordinances on the subject. There is also a reservation contained in the cour eluding part of the third Section of the third Article of the Convention of 1801, which seems to be irre- concilable with Wheaton's Interpretation. It is agreed that the stipulations of the present Article shall not prejudice in any way the particular stipu- lations of either Crown with other Powers ; whereby objects of a like kind shall be reserved, prohibited, or permitted'^'' ! Wheaton considers this clause to ap- ply only to subsisting treaties, and contends that its insertion countenances his construction of the Article, inasmuch as it was necessary for Great Britain, when she undertook to lay down an universal principle, ap- plicable to all her transactions with every Independent State, to reserve the more favourable practice which her subsisting treaties had estabhshed with some other Powers. But the words of the Article seem to bear a more extensive meaning, and apply rather to contingent than to subsisting treaties, and are not limited necessarily to treaties more favourable to 3^ Questiones Juris Publici article, ne portera aucune preju- L. T. CIO. " Dixi ex perpetua dice aux stipulations particulieres quodammodo conauetudine pa- de I'une ou de I'autre couronne ciscendi edicendique, quia unum avec d'autres puissances, par les- forte alterumve pactum quod a quelles des objects de pareil genre consuetudine recedit, jus Gentium seroient reserves, prohibes ou pej'- non mutat." mis." >rartens, Recueil, YII, 37 "II est aussi convenu. que p. 262. ce qui est stipul6 dans le present 136 SOURCES OF THE LAW OF NATIONS. Great Britain, as it speaks of Treaties which should permit, as well as of those which shoiild prohibit si- milar objects. It was vumecessary for the two Powers to declare that this treaty should not prejudice the subsisting treaties of Great Britain with other powers, excepting ex majori cauteld, to prevent any possible question between them on the subject ; for Great Britain could not set aside, under any circumstances, her Treaties with other Powers on the subject of Contraband of War, on the grounds that she had concluded a Treaty on other terms with Russia. On the other hand, this proviso would have been idle, had there been any principle of the Common Law of Nations which enti- tled any third Power to insist upon Great Britain and Russia observing towards itself a rule which accorded with their particular Treaty-engagements. In farther illustration of the imtenable nature of Wheaton's positions in regard to the particular subject of Con- traband of War, the practice of Nations may be ap- pealed to. Thus Great Britain during the war of the Spanish Succession made a Treaty with Denmark, under which ship-timber was recognised between the Two Powers as Contraband of War, and not to be imported into the enemy's ports. France, being at such time at war with England, did not claim from Demnark, under the Law of Nations, the observance of a like rule in her favour, but insisted upon Den- mark concluding an analogous Treaty with the French Crown. Such a measure would have been unneces- sary, if the Law of Nations had bound Denmark to observe the same rule as to Contraband of War towards the enemies of other Powers with which she was at amity, as she had engaged herself by Treaty with Great Britain to observe towards the enemies SOURCES OF THE LAW OF NATIONS. 137 of that Power. Yet there is no subject which concerns so intimately the interests of every Member of the Family of Nations, as the rights and obligations of Neutrality. Again, if the rule of Law was such as has been suggested by Wheaton, we should not find a special provision in treaties to the effect that the contracting parties shall grant to each other the same inmiunities and privileges which they should grant to any other Nation, in other words, what is termed "the most favoured Nation clause." But this sub- ject will be more fully discussed when we come to speak specially of Conventions. MeanwhiLe it may be useful to remark, that the Plenipotentiaries of the Seven Powers assembled in Congress at Paris on 1 6th April, 1856, who signed the Declaration respect- ing Maritime Law in time of War, with a view to Deciara- establish an uniform doctrine and more beneficial f^^^ Law practice, agreed to bring it to the notice of the '^^^*".j' States which did not take part in the Congress, and 1856. to invite them to accede to it. The Declaration was meanwhile to be binding only between the Powers who had acceded to it. But this proviso is idle, if Wheaton's Theory be correct, that the Conventional Law thus introduced, seeing that it relaxes the rigour of the primitive Law of Nations, and at the same time furnishes " a more definite rule in a case where the practice of states has given rise to conflicting pretensions," is not only binding on the contracting parties, but " constitutes a rule to be observed by them to all the rest of the world." The United States of North America, for instance, have been formally invited to accede to the Convention of Paris, but they have declined so to do, unless the European Powers wUl agree to modify still further their practice as to Prize of War on the High Seas. The remaining 138 SOURCES OF THE LAW OF NATIONS. Preambles and Re- citals of a Declara- tory Cha- racter. Powers of Europe who were not parties to the original Declaration, have since formally acceded to it'^. § 95. There may be exceptional cases in which articles of a Declaratory character are inserted in the Text of Public Acts of an International character, by the side of articles which are strictly the foimdation of a Contract, and those Declaratory articles may ap- ply to all Nations. Thus in the Final Act of the Con- gress of" Vienna (9 June, 1815) several Declaratory Acts of one or more of the Powers assembled in Con- gress were in substance incorporated in the form of Articles, or formally recognised as if annexed in ex- tenso. Amongst these the 109th Article may be specially referred to as expressly applicable to all Nations, which declares the navigation of all rivers, which traverse or separate the territories of the Powers which have signed the Treaty, to be free to all the ivorld. " La navigation dans tout le cours des rivieres indiquees dans I'article precedent, du point ou chacun d'elles devient navigable jusqu'a son em- bouchure, sera entiferement libre, et ne pourra, sous le rapport de commerce, etre interdite a personne, bien entendu que Ton se conformera aux reglemens relatifs a la poHce de cette navigation, lesquels seront concus d'une maniere uniforme pour tous, et aussi favorable que possible au commerce de toiites les Nations."^' The Regulation, on the other hand, respecting the 3^ It is most satisfactory to find, that iu the last (sixth) edition of Wheaton's Elements, (Boston, 1857,) edited after his death by Mr. William Beach Laurence, the objectionable doctrine which has been discussed in the precedini;- sections is no longer maintained. The passages which appear in the earlier editions, and which contain the reference to Mr. Ku- therforth's work, as well as Whea- ton's three positions, are discarded, and their place is supplied bysome general remarks which are more in accordance with the doctrine of Bynkershoeck. .^9 ^Martens, Nouveau Kecueil, II. p. 427. SOURCES OF THE LAW OP NATIONS. 139 rank of Diplomatic Agents which was incorporated in the General Act,"^ is an instance of a provision vir- tually applicable to aU Nations, but the Powers which agreed to the Regulation were extremely care- ful to disclaim any right to impose it upon other Powers. Again, in the Treaty of Paris, (30 March, 1856), Article XV is to this effect : "The Act of the Congress of Vienna having estabhshed the principles intended to regulate the navigation of rivers which separate or traverse different States, the Contracting Parties stipulate amongst themselves that those prin- ciples shall in future be equally appHed to the Danube and its mouths. They declare that this arrangement henceforth forms part of the Public Law of Europe, and take it under their guaranty." ^96. Certain writers, both in England and in objectiona France, have expressed a doubt how far the Rules of oj^y"^*'' conduct which prevail amongst Nations can properly ^''"f- ^^ be regarded or spoken of as Laws, on the ground tween Na- that they are not prescribed by any superior Power. Thus Mr. Austin says," "that the Law of Nations obtaining between Nations is not Positive Law, for every Positive Law is set by a given Sovereign to a person or persons in a state of subjection to its author." He observes further, that, "the law obtaining between Nations is law (improperly so called) set by general opinion. The duties which it imposes are enforced by moral sanctions ; by fear on the part of Nations, or by fear on the part of Sovereigns of provoking general hostdity, and incur- ring its probable evils, in case they shall violate maxims generally received and respected." Mr. Au- stin accordingly considers that the science which is conversant with the positive rights and obhgations 40 Art. CXVIII. 4' Austin on Jurisprudence, p. 208. 140 SOURCES OF THE LAW UF NATK.iNS. of Nations should be styled the science of Positive In- ternational Morahty. To a similar effect M. de Kay- neval writes^-, " there can be no right (droit) where there can be no law (loi), and there is no law where there is no Superior ; without law, obHgations, pro- perly so called, cannot exist ; there is only a moral obligation resulting from natural reason ; such is the case between Nation and Nation." He further says, that " law is a rule of conduct, deriving its obligation from sovereign authority, and binding only on those persons who are subject to its authority. Nations being independent of one another acknowledge no Sovereign from whom they can receive the Law (loi), and all their relative duties result from right or wrong, from convention or usage, to none of which can the term Law be properly apphed." Interna- ^97- It is however not a valid objection to the ramy dis° existenco of juridical relations between Nations, that tinct from thev 3X6 not, like the domestic law of a State, defined tns Law of •' . Nations, by the Sovereign Power, or that they are not enforced by the executive authority of a pohtical Superior. If those relations can be accurately defined howsoever, and can be enforced at all, they are not merely rela- tions of Morality, but relations of Law. The History of the European Law of Nations shews that the more powerftd Nations have, as occasion reqmred, used their individual strength to enforce its rules, and that the less powerfid Nations have combined their forces from time to time, and by their united strength compelled the more Powerftd States to respect them. Such leagues for the enforcement of the reciprocal rights and obligations of Nations have been the means of maintaining a Balance of Po\\er amongst the Europeai? 4'- De Eeyneval, Institutions du droit de la Nature et des Gens, L. I. p. 8. n. lo. SOURCES OP THE LAW OP NATIONS. 141 Nations, whereby the independence of the weaker states is protected from aggression, and the observance of settled rules of intercoiu-se amongst Nations is se- cured. Wherever a E,tde of Conduct is thus capable of being enforced it ceases to be a mere Rule of Mo- rality, binding on the conscience of me7i, and may in contradistinction be termed without risk of confusion a Rule of Law."^ There are, however, many ques- tions between Nations which involve matters of Inter- national Morahty, and the Rules of International Morahty^ are supplemental to the Rules of Interna- tional Law. Law may prevent wrong, but it cannot always secure right, and Morahty here steps in to the aid of Law between Nations, precisely as it comes to the aid of Law between individual human beings. Mr. Chancellor Kent has well observed, "that the Law of Nations is a complex system, composed of various ingredients ; it consists of general principles of right and justice, equally suitable to the govern- ment of individuals in a state of natural equahty, and to the relation and conduct of Nations ; of a collection of usages and customs, the growth of civih- sation and commerce ; and a code of Conventional and Positive Law. In the absence of these latter regulations, the intercourse and conduct of Nations are to be governed by principles fairly to be deduced 43 It appears to be a well rality as distinguished from Law. founded distinction between iaw 44 Mr. Senior proposes to dis- and Morality/, that wherever tinguish the Natural Law of Na- the sanctions of a rule of conduct tions by the term International are Physical, namely, wherever Morality, and to confine the term the sanction is fear of injury to International Law to the rules of person or property, the rule may conduct, whether consistent or be properly ranked under the not with International Morality, head of Law ; where the sane- which are sanctioned by the pub- tions of a rule of conduct are lie opinion of Nations. Edin- only to be discovered in the hu- burg Eeview, LXXVII. p. 306. man conscience, it is a rule of Mo- 142 SOURCES OF THE LAW OF NATIONS. from the rights and duties of Nations and the nature of moral obhgations ; and we have the authority of lawyers of antiquity, and some of the first masters in the modem school of Pubhc Law, for placing the moral obhgations of Nations and of individuals on similar grounds, and for considering individual and national Morality as parts of one and'' the same Science."^ 45 Kent's Commentaries of American Law. Part I. Lecture i. CHAPTER VI. EIGHT OF SELF-PEESERVATIOK. Absolute and Conditional RigMs of Nations — Right of Self- Defence — Treaty Limitations of such Right — Right of Self- Aggran- disement — Eight of anticipating Attack — Right of Confederation — The Balance of Power. ^98. Every Nation has certain rights with regard Absolute to other Nations, which pertain to its moral being as ditionai an Independent Pohtical Body, and the enjoyment of ^'J.;*^° which is indispensable to its existence as such. These Rights may be termed Primary and Absolute Rights ', as they are coordinate with the Being of a Nation, and are not dependent upon particular conditions of International Life. There are other rights to which all Nations are entitled, but not under aU circum- stances, which arise out of the intercourse of Nations with one another, and which cease with the circum- stances which give rise to them. These may be dis- tinguished as Secondary or Conditional Rights, some of them being incident to a state of amity, others being coincident only with a state of war. The Primary or Absolute Rights of Nations rest upon a foundation of Moral Truth, " the proofs of which are to be re- ferred to some such certain notions," to use the lan- guage of Grotius^ " as none can deny without doing violence to his own judgment." The Secondary or Conditional Rights rest upon a basis of historical fact. The former are inseparably connected with the free Moral agency of Independent Political Bodies, the ' Kliiber § 36. Wheaton, Elements, pt. II. c. i. §1. ^ De Jure Belli et Pacis, Prolegomena, § 39. 144 RIGHT OF SELF-PRESEEVATION. latter have grown up with the exercise of that free Moral agency, and with the mutual recognition of its consistency with the varying circumstances of Inter- national intercourse. Eight of §.99. Of the Primary or Absolute Rights of a Na- fence. tiou the most essential, and as it were the Cardinal Right, upon which all others hinge, is that of Self- Preservation. This Right necessarily involves, as sub- ordinate Rights, all other Rights which are essential as means to secure this principal end. Amongst these, the foremost is the Right of SeK-Defence. An Inde- pendent Political Society, which is not in a condition to repel aggression against its Territory, or against the Persons or Property of its Members, is unequal to the object of its Institution. " The Nation," writes VatteP, " ought to put itself in such a state as to be able to repel and humble an unjust enemy. This is an important duty which the care of its own perfection and even its Self-Preservation imposes both on the State and on its Conductor." Hence a Nation is entitled, consistently with the maintenance of peaceful relations towards other Nations, to fortify its Territories, to train up its Population generally in the use of arms, to main- tain a portion of its Population under arms, in the form either of a standing army or a permanent war-navy, to equip itself with stores and mvmitions of war, and to form defensiv^e alliances with other Nations. The presumption of Natural Law is, that all measiures of this kind which do not endanger the safety of other Nations, are undertaken bond fide for the security of National Independence, and the exercise of the Na- tural Right of a Nation in these matters is only con- trolled dejure by the equal and corresponding Rights 3 Droit des Gens, L. I. c. 14. § 177. RIGHT 01'' SELF-PRESERVATION'. 145 of other Nations. "A Nation," writes VatteP, "is sufficiently powerful, when it is capable of causing itself to be respected, and of repeUing whoever would attack it." Witliin these limits no Nation is bound to give account of its conduct to any other Nation. But the equal and corresponding Rights of other Nations come at once into play, if a Nation should increase its armaments to an extraordinary extent. Under such circumstances, any other Nation, in pur- suance of its own right of Self-Defence, may ask for explanation, if it either sees in the armaments of its Neighbour immediate occasion for alarm, or antici- pates possible danger to itself or its Allies. A refusal to furnish explanation, when it has been asked for in a coiu-teous tone, and with an amicable spirit, will justify counter-armaments, and may sometimes even justify immediate measures of hostile repression'. ^ loo. Exceptional cases occur de facto, in which Treaty Li- the limits, within which a Nation may lawfully .exer- S^RighTof cise its Eiarht of Self Defence, have been narrowed ?®'^ ^^' . . , fence. by special conventions freely entered into with other Nations. Thus the exercise of the Eight of a Nation to fortify its territory has been sometimes limited by treaty- engagements. In such cases the exercise of that Right by the erection of fortifications of a particular kind has been deemed to be inconsistent with the safety of another Nation. Thus by the Treaty of Utrecht, (anno 17 13,) confirmed by the subsequent treaties of Aix-la-ChapeUe, (anno 1748,) and of Paris, (anno 1763,) France engaged herself to Great Britain not to for- tify the town of Dunkirk towards the sea, as such 4 Droit des Gens, L. I. c. 14. Martens,Prteis,§ 117,1 18 ; Whea- § 185. ton's Elements, part II. c. i. .■^ Kliiber, Droit des Geiis, § 40 ; PART I. L 146 BIGHT OF SELF-PRESERVATION. fortifications were deemed by Great Britain to be in- consistent with her just security. By the treaty of LunevLUe", (anno 1801,) France restored to the Princes of the Germanic Empire all the conquests which her armies had made on the right bank of the Rhine, on the express condition however, that the ceded fortresses should continue permanently in the state, in which they were at the time of their evacuation by the French armies. By the Treaty of Paris, (anno 18 15',) France engaged herself to the Allied Powers not to rebuild the Fortifications of Huningen, which had been a source of disquietude to the City of B^sle, and not to replace them by any other Fortifications at a distance of less than three miles from that city. Again, the exercise of the Bight of a Nation to maiataiti a portion of its population under arms, has been sub- jected to limitation by treaty-engagements, more parti- cularly with regard to a war navy. Thus the Genoese in their Treaty with France, (anno 1683,) undertook to reduce the number of their vessels of war in com- mission, and the Ottoman Porte and Bussia have re- spectively engaged themselves to the Eiu-opean Powers who signed in conjunction with them the Treaty of Paris ^, (amio 1856,) by a joint Convention annexed to and declared to be a part of that Treaty, not to maintain severally more than ten vessels of war of a limited tonnage on the waters of the Black Sea. Rigiitof § 10 1. A Nation is not entitled to oppose itself to grandife- the territorial aggrandisement of another nation, im- less that aggrandisement be actually prejudicial to its rights, or visibly threatens to become so". War is not 6 Martens, Kecueil, vii. p. 296, p. 786. 7 Martens, NouveauKecueil,II. 9 Grotius de Jure Belli et p. 682. Pacis, L. II. c. I. § 17. Wolff, 8 Martens, N. K. G^n. XV. Jus Gentium, § 640. ment EIGHT OP SELP-PRESEEVATION. 147 justifiable on any other ground than that of repelling actual assault, or of preventing intended aggression. A Nation, which by any just means enlarges its do- minions by the incorporation of new Provinces with the free will of their inhabitants, or by the occupation of vacant territory to which no other Nation can lay claim, is pvirsuing the legitimate object of its Being, as a Political Society institiited for the promotion of the common welfare of its members'". "A State," writes Vattel, " that increases her power by all the acts of good government, does no more than what is commendable : she fulfils her duty tovards herself without violating those which she owes to other Nations'^." The right of every Independent State," writes Mr. Wheaton, " to increase its national domin- ions, wealth, population, and power, by all innocent and lawful means — such as the pacific acquisition of new territory, the discovery and settlement of new countries, the extension of its navigation and fisheries, the improvement of its revenues, arts, agriculture, and commerce, the increase of its mUitary and naval force — is an incontrovertible right of Sovereignty, ge- nerally recognised by the usage and opinioii of Na- tions." All writers on Public Law'^ agree that an increase of Power cannot alone, and of itself, give any Nation a right to take up arms in order to oppose it. The internal development of the resources of a country, although the increase of its population and wealth is the surest means of augmenting its power, has never yet been considered a just cause of alarm to other Nations, for such avigmentation is in perfect accordance with the moral end of a Nation's Being, '° Kliiber, §41. '- Elements of International 'I Droit des Gens, L. III. c. 3. Law, pt. II. c. i. § 3. §42. L 2 148 RIGHT OP SELF-PRESERVATION. and, being gradual, is not suggestive of any evU in- tention tovs^ards others. In the same way the settlement of Colonies in distant lands, and the acquisition of De- pendencies in remote quarters of the world, have been regarded as legitimate means of external develop- ment, which a Nation may ptirsue without giving to other Nations just cause of apprehension for their ovra safety. It would be contrary to Morahty for Nations to combine for the purpose of retarding the innocent growth of the power of a State, which ovdng to the superior merits of its PoKtical Institutions, or through the enhghtened guidance of wise rulers, is enabled to advance more rapidly in the career of civilisation than its neighbours, and, as a consequence of such advance, to attain to greater material prosperity. The usage of Nations in this respect accords vdth the dictates of right Reason. Right of ^102. On the other hand, an increase of power, if ing at-^ it be accompanied by the vdll to abuse that power, creates good ground for alarm, and may justify a recourse to arms.^^ " A Nation," writes Vattel, " which has a neighbour at once powerful and ambi- tious, has her all at stake. As men are under the necessity of regulating their conduct in most cases by probabilities, those probabihties claim their attention in proportion to the importance of the subject ; and, to make use of a geometrical expression, their right to obviate a danger is in a compound ratio of the de- gree of probability and the greatness of the evil threatened. If the evil in qiiestion be of a support- able nature, if it be only some shght loss, matters are not to be precipitated ; there is no great danger in delaying otir opposition to it, until there be a certainty of our being threatened. But if the safety of the '3 Wolff, Jus Gentium, § 651, 652. tack. RIGHT OP SELF-PRESERVATION. 149 State lies at stake, our precaution and foresight can- not be carried too far."'* Accordingly, as experience shews that there is in human nature a tendency to abuse power wherever it may be done with im- punity, the circumstance that the possession of power is generally accompanied with the will to abuse it, entitles a State, when its safety is at stake, to treat the first appearance of such a combination of power and will as a sufficient warning. '^ Further, if a Nation has exhibited unmistakable signs of undue ambition or rapacity, she becomes an object of suspicion to her neighbours, whose duty it is to stand their ground against her, and if she is at any moment on the point of acquiring a formidable accession of power, they may demand securities from her, and if she hesitates to give them, they may prevent the probable danger to themselves by force of arms'^. When the safety of the State is at stake, the Right of Self-Preserva- tion may warrant a Nation in extending its precau- tionary measures beyond the limits of its own domin- ions, and even in trespassing with that object on a neighbour's territory. As the Right of Self-Pre- servation is prior and paramount to the Right of Do- minion and Property in the case of individuals, so the Right of Self-Preservation is prior and paramount to the Right of Territorial Inviolabihty in the case of Nations, " and if ever these Rights conffict, the former is entitled to prevail within the limits of the neces- sity of the case. '^ Thus, if a Nation takes possession >4 Droit des Geiis, Lib. III. '6 Vattel, L. III. c. 3. § 49, 50. c. 3. § 44. '7 Phillimore, Tom. I. ^213. '5 Potentia igitur crescens in '^ Genti unicuique competit hoc casu non modo inter rationes jus ad ca quibus periculum iute- suasorias locum habet, sed in ritus avertere et ea, (|ua3 interi- ipsas quoque justificas influit, tum afferre possunt, vitare potest, quatenus abusus potcntiw uou quantum datur. Wolftj Jus C!cu- amplius dubius. Wolff', § 650. tiuni, § 34. 150 RIGHT OF SELF-PRESERVATION. of another Nation's territory with a view to conduct hostile operations against a third Nation, the third Nation may in virtue of its Eight of Self-Preservation lavpfully pass the frontier of the territory which has been so occupied, for the purpose of dislodging its enemy from it. Urgent and indisputable danger may even authorise a Nation, to occupy the territory of a neutral Nation in order to prevent the execution of an enemy's intention to occupy it for the purposes of carrying on its hostilities with greater advantage, whenever the Nation to which the territory belongs is unable or unwilling to defend it. But the exercise of this Eight, which Kliiber^^ regards as a Eight of Necessity, entails the obHgation to make compensation to the neutral State for any damages which may have accrued to it.^ Right of ^103. Two or more Nations have a right to unite themselves into one Independent PoHtical Body, so as to become one Nation, provided, the views, by which they are so actuated, be not prejudicial to other Na- tions. But if each of the Nations in question be able separately and without assistance to govern and sup- port itself, and to defend itself from insult and aggres- sion, it maybe reasonably presumed, that the object of their union is to obtain dominion over their neigh- bours, and on occasions where it is impossible or too dangerous to wait for an absolute certainty, other Nations will be justified in acting on a reasonable '9 Kluber, Pt. II. §44. reign is uot able to defend it. -^ Extreme necessity may But when the danger is over, we even authorise the temporary must immediately restore the seizure of a neutral town, and place, and pay all the charges, the putting a garrison therein, inconveniences, and damages, with a view to cover durselves which wc have occasioned by from the enemy, or to prevent seizing it. Vattel, L. III. c. 3. the execution of his designs § i:;^. agitiiist that town, wlicn the sove- Confede ration EIGHT OF SELF-PEESEEVATtON, 151 presiunption, and may forthwith have recourse to mea- sures of Self-Defence. On these grounds, Vattel" maintains, that the Nations of Europe would have been justified in combining together against Louis XIV of France, if he had attempted to unite the Monarchy of Spain to that of France ; for to have tamely suffered an union of the two Monarchies in the person of a Prince who had already given proofs of imperious pride and insatiable ambition, " would have been, according to aU the rules of human probability, equivalent to stirrendering the rest of Europe into servitude, or at least would have rendered the condi- tion of each European State too critical and precari- ous to be endurable by Independent Pohtical Bodies. The safety, therefore, of the other Nations of Eiirope would have justified them in opposing by anticipation stich a formidable accession to the power of so ambi- tious a Prince." The right is still clearer if a formid- able Power shoTild betray an unjust and ambitioiis disposition, by doing the least injustice to another Power. ^^ " In such a case, all Nations may avail themselves of the occasion," writes Yattel, " and by joining the injured Party thus form a Coahtion of strength, in order to humble the ambitious Potentate, and disable him from so easily oppressing his neigh- bours, or keeping them in continual awe and fear. For an injury gives to the injured Party a right to provide for his futiure safety by depriving an unjust Aggressor of the means of doing injury, and it is law- ful and even praiseworthy to assist an injured Party, and to aid him in obtaining redress and in protecting himself from injury."^ The supreme arbitrator be- tween Nations is the sword, but force of arms is not 21 Droit des Gens, L. III. c. 3. ^* Wolff', Jus Gentium, § 651. § 44. 2.^ Vattcl, L, III. c, 3, § 45. 152 RIGHT OF SELF-PRESERVATION. the orJy expedient by which Nations may guard themselves against a Formidable Power. There is a moral sanction to the mutual duties of Nations, in the fear of provoking general hostUity and incurring its probable evUs, in case a Nation should violate the Com- mon Law ; and these mutual sanctions are enhanced by the formation of Confederacies amongst the less power- ful Nations for the purpose of maintaining the Balance against a Nation whose Power causes them alarm. ^ The Ba- § 104. The Right of Confederacy under the Natural Power. Law of Nations is at the foundation of the Right of Intervention in the interest of what has been termed, since the Peace of Utrecht, (anno 1713,) the Balance of Power. The System of Balance, or European Equih- brium, is a creation of Positive Law. The outlines of the System may be discovered in the Provisions of the Treaty of Westphalia, (anno 1648,) and of the Treaties of Copenhagen (anno 1648) and of Ohva, (anno 1660,) but the express recognition of the Sys- tem of Balance, as a rule of Positive Law, dates from the Treaties of Utrecht, (anno 17 13,) concluded ex- pressly according to the recital in the Treaty between Great Britain and Spain, " Ad formandam stabihen- damque pacem ac tranqmllitatem Christiani orbis Justo Potentiae iEquihbrio."^' The maintenance of the Balance of Power in Europe is expressly set forth in the Acts of Renunciation to the Crown of Spain executed by the French Princes of the House of Bourbon, which are inserted in the body of the Trea- ties of Utrecht, as the motive cause of their Renun- ciation. The European System of Positive Law may be said to have rested upon the Treaties of Utrecht down to the French Revolution, (anno 1789,) although -i Wolff, Jus Gentium, § 6ry2. •= Schuiauss. Corp. Jur. Gent. KUiber, § ..(2 Academicum, p. 14 19. RIGHT OP SELF-PRESEKVATION. 153 during that period various elements were introduced into that System, which were calculated to derange the Balance of Power established at Utrecht. The wars of the French Revolution crumbled that System into atoms, and one main object of the Congress of Vienna, next only to that of settling a General Peace, was to secure the maintenance of the repose of Europe by a readjustment of the Balance of Power. The in- tentions of the Allied Powers in this sense had been avowed by them in the Preamble of the Convention of Paris (23 April, 1814).^" That the Balance of Power is a principle at the foundation of the Positive Law of Europe, and that the Powers which were Parties to the Treaties of Vienna acted upon that principle in framing the Great Eiuropean Settlement of 18 15, has been recorded by the Five Powers in several im- portant International Acts. Thus the Five Great Powers, which were Parties to the Treaty of Paris, having been invited by the King of Holland to assist him in the settlement of the distiirbed relations be- tween the Belgian Provinces and the Dutch Crown, placed formally on record their view of the grounds which justified their Intervention. Having expressly stated," that the original object of uniting the Bel- gian Provinces with Holland was to estabhsh a Just Equilibrium in Europe, they proceed to say that the Five Powers had a right, and that events imposed upon them a duty, to prevent the Belgian Provinces, as an Independent State, causing any distiirbance of the general security and the Etiropean Equilibrium. The same principle was affirmed in the Treaty of London, (8 May, 1852) ^^ concluded between the Five 26 Martens, N" E, 1. p. 706. X. p. 197. British and Foreign -7 Nineteenth Protocol of the State Papers, XVIII. p. 779- Conferences of the Five Powers, -^ Annuaire Historique Uni- (19 Feb. 1831.) :\rartens, N. K. versel, 1851. Appendix, p. 191. 154 RIGHT OF SELP-PKESERVATION. Powers and Sweden on the one hand, and the King of Denmark on the other hand, ki recognition of the esta- •bhshment of an order of Succession in the Danish Provinces of the Monarchy, which should harmonize with that already existing in the German Duchies. It was on that occasion formally declared, " that the maintenance of the integrity of the Danish Monarchy was intimately connected with the general interests of the European Equilibrium." The same principle was relied upon by the Governments of Great Britain and France, when they protested in 1851 against the proposed incorporation of any non-German States into the Germanic Confederation^', as a derangement of the European Eqmlibrium. The last great occa- sion for the recognition of the principle of the Balance of Power, as lying at the foundation of that branch of the Positive Law of European Nations which may be termed the Public Conventional Law of Europe, was farnished by the latest settlement of the Eastern Question. The Preamble of the Treaty of Constanti- nople, concluded between Great Britain and France on the one hand, and the Ottoman Porte on the other, (March 12, 1854,)^" recites, "that her Majesty the Queen of Great Britain and Ireland, and his Majesty the Emperor of the French, have been re- quested by his Highness the Sultan to assist liim m repelling the attack which has been made by his Majesty the Emperor of all the Bussias on the Terri- tory of the Sublime Porte, an attack whereby the In- tegrity of the Ottoman Porte and the Tiide2:>eudenee of the Sultan's throne are endangered, and as their Ma- jesties are perfectly convinced that the existence of -9 Amiuaire French ^lemo- 3" ^Miutfiis, N. K. Gen. XV. randum. App. p. 176. Pjiiglisli p. 565. note. App. p. 1 8 1. RIGHT OP SELP-PEESERVATION. 155 the Ottoman Empire in its present extent is of essen- tial importance to the Balance of Power amongst the States of Europe ; and as they have in consequence agreed to afford his Highness the Sultan the assist- ance which he has requested to this end, their aforesaid Majesties and his Highness the Sultan have deemed it proper to conclude a Treaty, so as to attest their intentions in conformity with the above." In the Conferences subsequently held at Vienna in 1855 between France, Great Britain, Austria, the Ottoman Porte, and Russia, the principle of main- taining the European Equilibrium was repeatedly invoked by all Parties, as supplying a rule for approv- ing or rejecting the various proposals of accommoda- tion. This principle was more especially rehed upon in reference to the Neutralisation of the Black Sea, and to the maintenance of the ancient Pule of the Ottoman Porte, according to which the Passage of the Straits leading from the Mediterranean into the Black Sea are closed against the vessels of war of all Nations, whilst the Ottoman Porte remains at peace with all Nations. ^^ 3' Protocol to the 12th Conference, (21 April, 1155.) Mar- tens, N. K. Gen. XV. p. 676. CHAPTER VII. RIGHT OF ACQUISITION. Establishment of a Nation in a Country — .Juridical Notion of Possession — Possession as founding a Eight of Property — Primitive and Derivative Acquisition — Settlement of a Nation — Eight of Oc- cupation — Eight of Discovery — Notification of Discovery — Acts Confirmatory of Occupation — Discovery followed by Settlement con- stitutes a Perfect Title — Extent of Eight of Discovery — Extent of Eight of Occupation — Principles of Law advanced by the United States of America — Discovery of the Mouth of a Eiver — Conflict with Acknowledged Law — Eight of Settlement — Usucaption or Pre- scription — Territory of the Hudson's Bay Company — Eight of con- tigtiity — Arcifinious States — Discovery of the New World — Settle- ments in the New World — Possessory Eight of Native Indians — Agriculture in relation to Pasture — The Indian Title — Derivative Acquisition — Title by Cession. Establish- §105. By virtue of its Independence and its Right Nation in of Self- Preservation, every Nation is entitled to per- a Country, fg^^ freedom of action, with a view to promote its own welfare within a sphere, which is consistent with the Independence and Self-Preservation of other Nations. It may accordingly not merely make use of the gifts of nature for the satisfaction of its immediate wants, but, if they are susceptible of exclusive possession, it may appropriate them to meet its future wants. This Right of a Nation to possess a thing [Jii^ Possi- dendi) apphes not merely to the fruits of the earth, but to the soil which produces it. Vattel regards the right of a Nation to possess a territory as inci- dent to its Right of Self-Preservation. " The earth," he writes,^ "belongs to mankind in general, destmed by the Creator to be their common habitation, and to supply them with food ; they all possess a Natural ' Droit dcs Gens, L. I. § 203. ETGHT OF ACQUISITION. 157 Right to inhabit it, and to derive from it whatever is necessary for their sustenance and suitable to their wants. But when the human race became extremely multiphed, the earth was no longer capable of furnish- ing spontaneously and without culture sufficient sup- port for its inhabitants ; neither could it have re- ceived proper cultivation from wandering tribes of men continuing to possess it in common. It there- fore became necessary that those tribes shotild fix themselves somewhere, and appropriate to themselves portions of land, in order that they might, without being disturbed in their labour, or being disappointed in the fruits of their industry, apply themselves to render those lands fertile, and thence derive their sus- tenance. Such must have been the origin of the Rights of Property and Domain, and it was a suffi- cient ground to justify their estabhshment. Since their introduction, the Right, which was common to all mankind, is individually restricted to what each lawfully possesses. The country which a Nation in- habits, whether that Nation has emigrated thither in a body, or the different families of which it consists were previously scattered over the country, and there uniting formed themselves into a pohtical society, that country, I say, is the Settlement of the Nation, and it has a peculiar and exclusive right to it." ^ To6. The Right of a Nation to possess a territory juridical being admitted, it follows that we should consider pogg™ion what constitutes Lawful Possession ; in other words, what constitutes Possession, not merely as the conse- quence of a Right, but as itself the Foundation of Rights. " AU Definitions of Possession," writes Sa- vigny,^ "however much they may differ from one " Das Keclit des Besitzes. has beentranslatedinto English by Giessen, 1837, p. 2, 3. This work Sir Erskine Perry. London, 1848. 158 RIGHT OF ACQUISITION. another in terms, and even in substance, contain the same general principle as their basis, from which every inquiry into the subject must proceed. By the possession of a thing, we always conceive the con- dition, in which not only one's own dealing with the thing is physically possible, but every other person's dealing with it may be prevented. Thus the seaman possesses his ship, but not the water in which it moves, although he makes each of them subserve his purpose. The condition of a thing, which is termed Detention, and upon which all our notions of Posses- sion are founded, is not by itself in any way an object of Legislation, and the Notion of it is not in itself a Juridical Notion, but it bears an immediate relation to a Juridical Notion, whereby it becomes itself an object of Legislation. For as Property consists in the legal power of dealing with a thing at will, and of excluding every one else from its enjoyment, the ex- ercise of Property takes place by Detention, and De- tention is accordingly the condition of Fact, which corresponds to Property as the condition of Law.'' The Right to possess {Jus Possidendi) thus forms part of the Theory of Property, and the act of De- tention acquires a Juridical character in connection with the Right to possess. Possession §10/. The lawfulucss of all possession depends as founding a ri ightof upon what the later Roman Jurists call the mod us property, acquireiidi. The Act of Detention jj(?r se in the case of a person detaining a thing constitutes a condition of Fact, which has been termed by Jurists Natui^al Possession. The condition of Fact involved in bare Detention (nuda rei prehensio) is regarded as ter- minable at any moment ; but if a person detains a thing animo sihi hahendi, and manifests his inten- tion of exercising ownership for himself, such con- RIGHT OF ACQUISITION. 159 tinuiiig Detention gives rise to a condition of Law, and it has conseqixently been termed Legal Posses- sion. " Apiscimur possessionem animo et facto, neque per se animo ant per se corpore^." The condition of Law arises in this manner. There is an obligation of Natural Law upon all persons to refrain from Per- sonal violence, for Personal inviolability is a Natural Right. B\it the continuing Detention of a thing, animo sibi habendi, cannot be interrupted or put an end to against the will of the party so detaining it, without violence to his person. There thus arises an obhgation of Natural Law to refrain from disturbing a party who is in possession of a thing, as the Invio- labihty of the Person extends to those acts of dis- turbance, whereby the Person might at the same time be, however indirectly, interfered with. The Right of Property is thus a Corollary to the Right of Personal Inviolability, for the Bight of Property in a thing, or the lawful power of dealing with it at will, may be said to have arisen, when all persons recognise the party in Possession of a thing to have a Right of excluding them from dealing with it, and that Right is de facto recognised, when all persons admit an obhgation on themselves to refrain from disturbing him in his possession of it. Possession accordingly, that is, a continuing Detention animo sibi habendi as distinguished from bare Detention, gives rise to the right of not being disturbed ; and when the Possession itself is rightful in its origin, the Right which ensues is a perfect Right. In respect of this Right, certain rules ^ as to the acquisition and i Dig. L. XLI. Tit. II. § 3. Eoman Jurisconsults, who held 4 These rules, and many others them to be institutions of the Jus which refer to Dominion and its Gentium, or common Law of all incidents, are borrowed from the Nations. 160 RIGHT OF ACQUISITION. loss of Possession, have been established. The first rule is, that a person may take possession of a thing which has no owner, so as to acquire Rightful Posses- sion of it ; and Property is in such case acquired simultaneously with Possession. " Quod enim nulHus est, id ratione naturaH occupanti concediturl" The second rule is, that a person may acquire Rightful Possession of a thing of wliich the previous owner has renounced Possession, either relatively in his favour by Cession, or absolutely, to the first comer by Abandonment. Primitive § ro8. Rightful Acquisition, as the foundation of vative ao- the Right of Property in individuals, is accordingly qui3i ion, g£^2^gj. rprimitive or derivative'^. Primitive Acqui- sition is termed Occupation. " On appelle occupa- tion un fait, par lequel quelqu'un declare qu'une chose, qui n'est a personne, doit etre a lui, et la re- duit en tel etat qii'elle pent etre sa chose. II paroit de la que le droit d'occuper une chose, ou de sen emparer, appartient naturellement a chacim indiffe- remment, ou bien que- c'est un droit commun de tous les hommes, et comme on appeUe maniere primitive d'acqu^rir celle par laquelle on acquiert le domaine dime chose qui n'est k personne, U s'ensuit que I'occu- pation est la maniere primitive d'acqiierir^" Such being the Law of Nature in regard to primi- tive acquisition on the part of mdividuals, the Law of Nations is in perfect accord with it. " All man- kind," writes Vattel, " have an equal right to thmgs that have not yet fallen into the hands of any one ; and those things belong to the person who first takes possession of them. When, therefore, a Nation finds a country uninhabited and without an owner, it may 5 Dig. L. XLl. Tit. I. § 3. 7 Wolff, Institutions du Droit ^ Grotius, L. II. c. 3. § I. de la Nature et des Geus, 5 210. RIGHT OF ACQUISITION. 161 lawfully take possession of it ; and after it has suffi- .ciently made known its will in this respect, it cannot be deprived of it by another Nation. Thus navi- gators going on voyages of discovery, and meeting with islands or other lands in a desert state, have taken possession of them in the name of their Nation, and this title has been usually respected, provided it was soon after followed by a real possession^." § 109. Settlement accordingly in a country in the Settlement case of a Nation corresponds to the continuing Deten- ° ^ ^ "^"' tion of a thing in the case of an individual, and the Natural Right of a Nation founded on Settlement corresponds to the Natural Right of an individual founded on Possession. There is thus an obligation of Natural Law upon aU Nations to refrain from dis- turbing a Nation which has settled in a country, which was vacant at the time of its settlement. " Un etat pent acquerir des choses qui n'appartiennent a personne (res nullius) par Y occupation (originaire), les biens d'autrui au moyen de conventions (occupa- tion derivative). . .Pour que Y occupation soit legitime, la chose doit etre susceptible d'une propriety exclu- sive, eUe ne doit appartenir a personne ; Fetat doit avoir I'intention d'en acquerir la propriete et en prendre possession, c'est 'k dire, la mettre entiferement \ sa disposition et dans son pouvoir physique. Ceci a lieu lorsqu'il a tellement influe sin: la chose, quelle ne peut lui etre enlevee sans lui ravir en meme temps le fruit du changement legitime qu'il y a opere'. ^ 1 10. The exclusive Right of a Nation to Territory Right of which it has acquired by Occupation, has been uni- ""^""^^ ™^' versaUy recognised by the Nations of Europe, and in respect of such Right certain rules have become 8 Droit des Gens, L. I. § 9 Kltiber, Droit des Gens, 207. Part II. c. I. § 125. PART I. M 162 RIGHT OF ACQUISITION. established by usage, whereby the condition of Law constituting Occupation may be placed beyond doubt. The Natural Eight of an individual to appropriate the object of his discovery rests upon the presump- tion that it has no owner, which presumption, in the case of the first comer, is a necessary presumption, and consequently a praesumptio juris et de jure. But the act of discovery alone does not constitute Occu- pation by the Law of Nations. The title which results from Discovery is only an inchoate title. It is not recognised in the Roman Law, nor has it a place in the system of Grotius or of Puffendorf. The princi- ple, however, upon which it is based, is noticed by De Wolff. " Pareillement si quelqu'iui renferme un fond de terre dans des limites, ou le destine k quelque usage par un acte non passager, ou que se tenant sur ce fond limits, il dise en presence dautres hommes qu'il veut que ce fond soit a lui, il sen empare ^"f M. Luzac has appended to this passage the following note, " Nous ne trouvons pas cette occupation dans le droit Remain. C'est sur elle que sont fondes les droits, que les puissances s'attribuent, en vertu des d^couvertes." Eight of § 1 1 1 . A Nation is under an obhgation towards iscovery. Q^}jgp Nations aualogous to that under which an in- dividual stands towards other individuals with regard to the discovery of a thing, if it seeks to found an exclusive title to its possession upon the Might of Discovery. It must manifest in some way or other to other Nations its intention to appropriate the ter- ritory to its OAvn purposes. The Comity of Nations then sanctions a presumption, that the execution of the intention will foUow within a reasonable time the 1° Wolff, Institutions du Droit de la Nature et des Gens, § 213. Right of ACQaisiTioN. 163 announcement of it. But Natural Reason requires that the Discovery should be notified to other Nations, otherwise if actual Possession has not ensued, the ob- vious inference would be that the Discovery was a transient act, and that the territory was never taken possession of animo et facto. A Discovery accordingly, which has been concealed from other Nations, has never been recognised as a good title to bar them from settling in a territory ; it is an inoperative act. Lord StoweU'^ has accordingly noticed, as an indis- putable fact, that in newly discovered countries, where a title is meant to be estabhshed for the first time, some act of Possession is usviaUy done and proclaimed as a Notification of the fact. §112. The mode of Notification, in other words, Notifica- what acts should be respected by the Comity of Na- covery. tions, and be held sufficient to make known the in- tention of a Nation to avail itself of a discovery, has been a subject of much dispute. The disposition how- ever of Writers, as well as of Statesmen, has been to limit rather than to extend the Comity of Nations in this respect. Thus Vattel writes, " The Law of Na- tions will therefore not acknowledge the Property and Sovereignty of a Nation over any uninhabited coun- tries except those of which it has really taken posses- sion, in which it has formed settlements, or of which it has actual use. In effect, when Navigators have met with desert countries in which those of other Nations had in their transient visits erected some monuments to shew their having taken some possession of them, they have paid as little regard to that empty ceremony, as to the regulation of the Popes, who di- vided a great part of the world between the Crowns of Castile and PortugaPl" " TheFama,5 Robinson, p. 1 1 5. 1- Droit des Gens, L.I. §208. M 2 1()4 EIGHT OF ACQUISITION. To the same purport, Martens writes, " Suppose que roccupation soit possible, il faut encore qu'elle ait eu lieu effectivement ; que le fait de la prise de pos- session ait concouru avec la volonte manifeste de s'en approprier I'objet. La simple declaration de volonte dWe Nation ne suffit pas, non plus qu'une Donation Papale, ou qu'une Convention entre deux Nations pour imposer h, d'autres le devoir de s'abstenir de I'usage ou de I'occupation de I'objet en question. Le simple fait d'avoir ete le premier a decouvrir ou k visiter une He, &c., abandonnee ensuite, semble insuf- fissant, meme de I'aveu des Nations, tant qu'on n'a point laisse de traces permanentes de possession et de volonte ; et ce n'est pas sans raison qu'on a souvent dispute entre les Nations, si des croix, des poteaux, des inscriptions, &c., suffisent pour acquerir ou pour conserver la propriete exclusive d'wa. pays qu'on ne cultive pas'^." Kluber to the same effect, writes thus, "Pour ac- querir une chose par le moyen de I'occupation, 'A ne suffit point d'en avoir seulement I'intention, ou de s'attribuer une possession purement mentale ; la de- claration meme devouloir occuper, faite anterieurement a I'occupation effectuee par wn autre, ne suffirait pas. II faut qu'on ait reellement occupe le premier, et c'est par cela seid, qu'en acquerant tm droit exclusif sur la chose, on impose a tout tiers I'obHgation de s'en ab- stenir. L'occupation d'une partie inhabitee et sans maitre du Globe de la Terre, ne pent done s'etendre plus loin qu'on ne pent tenir poTu: constant qu'il j ait eu effectivement prise de possession, dans I'intention de s'attribuer la propriete. Comme preuves d'Tine pareUle prise de possession, ainsi que de la contiaix- ation de la possession en propriete, peuvent servir 13 Precis du Droit des Gens, § 37, RIGHT OF ACQUISITION. 165 tous les signes exterieurs qui marquent roccupation et la possession continue^*". To this passage there is appended the following note. " Le droit de propriete d'etat pent, aprfes le droit des Gens, continuer ^ ex- ister, sans que 1 etat continue la possession corporeUe. II suffit qu il existe un signe qui dit que la chose n'est ni res nullius, ni delaissee. En pareil cas, personne ne saurait s'approprier la chose, sans ravir de fait k celui, qui I'a possedee jusqu' alors en propriete, ce qu'il J a opere de son influence d'une maniere legitime : en- lever ceci, ce serait blesser le droit du proprietaire." §113. It is difficult to lay down absolutely what Acts con- constitutes a sufficient sign, that a territory has been of Occu^a- eifectively reduced into Possession after Discovery. *'°°- Bynkershock, who was originally opposed to the con- tinuance of any exclusive Right founded on Occu- pation, unless natural Possession was maintained, subsequently qualified his view in deference to the objections of Christian Thomasius : "Pes immo- biles," writes Thomasius ^^ "quae sunt nullius, occu- patse esse censentur, si cseptse sunt custodiri, aut si cgeperim solo uti ad id, ad quod destinatum est nattu:4, et usus durat ; V. G. Si sedfficaverim in solo, si soKun vaUo et fossa vel ssepibus circum- dederim, conservatur possessio, quamdiu continu- atur custodia, etiamsi non incumbam possessioni, sed abeam. V. G. Si ager consitus sit, et fructus a me satos ferat, si ager circiunseptus sit, si sedes extructae maneant, si clavem ad eedes habeam, si ahos arceam ab usu rei." " Hgec iUe," writes Bynkershoek, " et recte, nam omnibus his, quos recenset, modis possessio ex apprehensione coepta, porro continuatur, et conti- nuata possessione continuatur dominium. Cultura 14 Droit des Gens, § 126. Huberum de Jure Civitatis, L, II. 1; Annotationes ad Ulricum s. 11. §43- 166 RIGHT OP ACQUISITION. itaque et cura agri possessionem quam maxima indi- cat. Neque enim desidero vel desideravi unquam, ut tunc demum videatur quis possidere, si res mobiles ad instar testudimim dorso ferat suo, vel rebus immo- bilibus incubet corpore, ut gallinse solent incubare ovis. Prceter animum possessionem desidero, sed qualemcungue, quce probet me nee corpore desiisse possidere^'^. Discovery § 114- When Discovery has been followed by the Settlement Settlement of a Nation, other Nations in accordance constitutes -^^^]j ^j^^g Law of Nature recognise a perfect title in title. the occupant. Where discovery has not been imme- diately followed by settlement, but the fact of dis- covery has been notified, other Nations by courtesy pay respect to the notification, and the Usage of Na- tions has been to presume that Settlement will take place within a reasonable time ; but unless discovery has been followed within a reasonable time by some sort of settlement, the presumption arising out of notification is rebutted by non user, and lapse of time gives rise to the opposite presumption of Abandon- ment. Thus in the Conference" held at London be- tween the Commissioners of Great Britain and of the United States of North America in 1826, the British Commissioners, Messrs. Huskisson and Addington, maintained these views : " Upon the question how far prior discovery constitutes a legal claim of Sove- reignty, the Law of Nations is somewhat vague and undefined. It is however admitted by the most approved writers, that mere accidental discovery, unattended by exploration, by formally taking pos- session in the name of the discoverer's Sovereign, by occupation and settlement more or less permanent, "^ De Dom. Maris, 0. i, '7 British Statements annexed to the Protocol of the Sixth Conference. EIGHT OF ACQUISITION. 167 by purchase of the territory on receiving the Sove- reignty from the Nation, constitutes the lowest degree of title ; and that it is only in proportion as first discovery is followed by any or all of these acts, that such title is strengthened and confirmed." Mr. GaUatin, on the other hand, the Plenipotentiary of the United States ^^ thus states the American view, " It may be admitted, as an abstract principle, that, in the origin of Society, first occupancy and culti- vation were the foundation of the rights of private property and of National Sovereignty. But that principle, on which principally, if not exclusively, it would seem that the British Government wishes to rely, could be permitted, in either case, to operate alone and without restriction, so long only as the extent of vacant territory was such, in proportion to the population, that there was ample room for every individual and for every distinct community or Na- tion, without danger of collision with others. As ia every Society, it had soon become necessary to make laws, regulating the manner in which its members should be permitted to occupy and to acquire vacant land within its acknowledged boundaries ; so also Nations foiind it indispensable for the preservation of peace, and for the exercise of distinct jurisdiction, to adopt particularly, after the discovery of America, some general rules, which should determine the im- portant previous question, ' Who had a right to occupy.' " The two rales generally, perhaps universally, re- cognised and consecrated by the Usage of Nations, have followed from the nature of the subject. " By virtue of the first, prior discovery gave a right 1^ American Counterstatement annexed to the Protocol of the Seventh Conference. 168 RIGHT OF ACQUISITION. to occupy, pro^dded that occupancy took place within a reasonable time, and was ultimately foUowed by permanent settlement and by the cultivation of the soU." " In conformity with the second, the right derived from prior discovery and settlement, was not confined to the spot discovered or first settled. The extent of territory which would attach to such first discovery or settlement, might not in every case be precisely determined. But that the first discovery and subse- quent settlement within a reasonable time of the tnoutli of a river, particularly if none of its branches had been explored prior to such discovery, gave the right of occupancy and ultimately of Sovereignty to the whole country drained by such river and its seve- ral branches, has been generally admitted. And in a question between the United States and Great Bri- tain, her acts have with propriety been appealed to, as shewing that the principles on which they rely accord with their own^'." Extent of §115- The quostion as to the extent of territory Dif ''* "r o"^6r which the discovery of a part gives rise to the right of occupancy, may receive a solution by refer- ence to the principles of Law, which decide to what extent natural possession must go in order to give a title to more than is actually inhabited. It is not necessary in order to constitiite the occupant of a thing the legal proprietor of it, that he should have natural possession of the whole of it ; if he has pos- session of a part which cannot be separated from the whole, he is in possession of the whole. The Roman Jurists applied this principle to the possession of land, " Quod autem diximus et corpore et animo acquirere nos deherc possessionem, non utique ita 19 Message of President Adams to Congress, Dec. 28, 1827. RIGHT OF ACQUISITION, 169 accipiendum est, ut qtii fundum possidere velit, omnes glebas circumambulet, sed sufficit quamlibet partem ejus fundi introire, dum mente et cogitatione hac sit, uti totum fundum usque ad terminum velit possidere^"." In the case of a Legal Entity, as for instance the property of a farm or garden, the Law enables us to ascertain its boundaries by reference to records, and there is no practical difficulty in deter- mining the extent of land over which the possession of a part carries with it the Right of Possession, (Jus Possessionis.) But in the case of an unoccupied country, the natural possession of a part cannot carry ■wdth it the legal possession of the whole ; as if it were so, there would be no territory legally vacant on the mainland, seeing that the first settlers in any part of a great Continent would by virtue of occupy- ing that part be in rightful possession of the whole. ^ 1 16. "If at the same time," writes VatteP\ " two Extent of or more Nations discover and take possession of an ocfum-^ island or any other desert land without an owner, tio". they ought to agree between themselves and make an equitable partition ; but if they cannot agree, each wiU have the Right of Empire and the Dom^ain in the parts in which they have first settled." So far Vattel seems to restrict the Right of Possession to the country actually taken possession of ; but in an- other passage he indirectly points to something more. " It may happen ^^, that a Nation is contented with possessing only certain places, or appropriating to itself certain rights in a country which has not an owner, without being solicitous to take possession of the whole country. In this case, another Nation may take possession of what the first has neglected : but ^" Dig, XLI. Tit. II. § 3. 2' Droit dcs Gens, L. II. § 9. -^ Ibid. ^ g8. 170 lUGHT OF ACQUISITION. this cannot be done without allowing all the rights acquired by the first to subsist in their full and abso- lute Independence." Hence if a Nation has occupied a territory, it has a right to every thing, as appurte- nant to the territory, which is necessary for the inte- grity and seciirity of its possession. Upon an analo- gous principle, when a Nation has discovered a country, and notified its discovery, it is presumed to intend to take possession of the whole country within those natural boiindaries which are essential to the Independence and Security of its Settlement, and its Right of Discovery is coextensive with such limits. Principles ^ n/. The principles appHcable to such questions advanced wcrc discusscd by the Commissioners of the United United Statos of America, in the negociations with the Com- statesof missioners of Spain, on the subiect of the Western America. -*■ , . ^ . . boundary of Louisiana. " The principles," they ob- serve, " which are applicable to the case, are such as are dictated by reason, and have been adopted in practice by European Nations in the discoveries and acquisitions which they have respectively made in the New World. They are few, simple, intelHgible, and at the same time founded in strict justice. The first of these is that, when any Eiu-opean Nation takes possession of any extent of sea-coast, that jpos- session is understood as extending into the interior Country, to the sources of the rivers emptying within that coast, to all their branches, and the country they cover, and to give it a right in exclusion of all other Nations to the same^. It is evident that some rule or principle must govern the rights of European Powers in regard to each other, in all such cases, and it is certain that none can be adopted, in those -,' Memoirp de rAim'-rique p. ii6. EIGHT OF ACQUISITION. 171 cases to which it applies, more reasonable or more just than the present one. Many weighty conside- rations shew the propriety of it. Nature seems to have destined a larger range of territory so described for the same Society ; to have connected its several parts together by a common interest, and to have detached them from others. If this principle is departed from, it must be by attaching to such dis- covery and possession a more enlarged or contracted scope of acquisition : but a slight attention to the subject vsdll demonstrate the absurdity of either. The latter would be to restrict the rights of an European Power, who discovered and took possession of a new country, to the spot on which its troops or settlements rested : a doctrine which has been totally disclaimed by all the Powers who made discoveries and acquired possession in America. The other extreme would be equally improper ; that is, that the Nation, who made such discovery should, in aU cases, be entitled to the whole territory so discovered. In the case of an Island, whose extent was seen, which might be soon sailed round and preserved by- a few forts, it may apply with justice ; but in that of a Continent it would be absolutely absurd. Accord- mgly we find that this opposite extreme has been equally disclaimed and disavowed by the doctrine and practice of European Nations. The Great Con- tinent of America, North and South, was never claimed or held by any one European Nation, nor was either great section of it. Their pretensions have always been bounded by more moderate and rational principles. The one laid down has obtained general assent^." The Commissioners of the United States on this Possses- sion of the 24 Britisli and Foreign State Papers, 1817-18, p. 327. 172 RIGHT OF ACQUISITION. coast in- occasion, in applying the above principle to the claim Mand ter- of their Nation, were careful not to press the doctrine ntory. q£ virtual possossion beyond those limits within which the Nations of Europe woiild be in accord with them. On the authority of the principle above stated, they say, " it is evident that by the discovery and possession of the River Mississippi in its whole length, and the Coast adjoining it, the United States are entitled to the whole country dependent on that River, the waters which empty into it, and their several branches, within the limits on that coast." In other words, they maintain that, the occupation of the sea-coast entitles a Nation to the possession of the inland territory, and of the navigable rivers in- cluded within it ; in which position of Law all Euro- pean Nations agree. But such a position of Law differs materially from that, which was contended for by Mr. Gallatin on behalf of the United States in the Conferences in London in 1827, already alluded to, (^14.) Discovery § nS. The positiou of Law maintained on behalf mouth of a of the United States by Mr. Gallatin in 1827, above ^'^®''- alluded to, (^ 114,) had been previously advanced by Mr. Rush in 1824, when resident as Minister Pleni- potentiary of the United States in London, " I asserted," he writes to the American Secretary of State, Hon. J. Quincy Adams, " that a Nation dis- covering a country by erdering the mouth of its prin- cipal river at the sea-coast, must necessarily be allowed to claim and hold as great an extent of the Interior country as was described by the course of such principal river and its tributary streams ^^" The Plenipotentiaries of the United States in sup- port of their position, appealed to the language of -5 Bi-itisli ami Foreign State Papers, 1825-26, p. 506. RIGHT OF ACQUISITION. 173 ancient Charters accorded to Companies of Adven- turers and to individual explorers by various Euro- pean Sovereigns, as evidence of the practice of Euro- pean Nations in regard to the rights resulting from discovery. It was rephed on behalf of the British Plenipotentiaries, that those Charters had no valid force or effect against the subjects of other Sove- reigns, but could only bind and restrain vigore siio those who were under the Jurisdiction of the Grantor of the Charters, and that although they might confer on the Grantees an exclusive title against the sub- jects of the same Sovereign Power, they could only affect the subjects of other Sovereign Powers, so far as the latter might be bound by the Common Law of Nations to respect acts of Discovery and Occupation, effected by the members of other Independent Poli- tical Communities. The reply of the British Com- missioners was in perfect harmony with the principle under which Great Britain, France, and HoUand, refused to recognise the authority of the Papal Do- nation ; by virtue whereof Spain and Portugal claimed to exclude aU other European Nations from the possession and use of the lands and seas which had been granted to them in the famous Bull of Pope Alexander VI (anno 1493.) Accordingly when Men- doza the Spanish Ambassador remonstrated against the expedition of Drake, Queen Elizabeth rephed, that " she did not miderstand why either her subjects or those of any other European Power should be debarred from traffick in the Indies : that she did not acknowledge the Spaniards to have any title by donation of the Bishop of Rome, so she knew no right they had to any places other than those they were iri actual possession of; for their having touched only here and there upon a Coast, and given names 174 RIGHT OP ACQUISITION. to a few rivers and capes, were such insignificant things as could in no way entitle them to property (proprietas) further than in the parts where they actually settled and continued to inhabit ^l" Conflict ^119. The principle involved in the position of know- Law, advanced by the United States on the above Law*^ occasions, seems not to be reconcilable with other positions of Law, in which all Nations agree. It is inconsistent, in the first place, with one of the posi- tions . of Law upon which the United States them- selves rested their claims against Spain respecting the boundary of Louisiana in 1805, (s. 117,) namely, that the discovery and occupation of an extent of sea- coast by a Nation is imderstood to convey to that Nation a right of possession over the interior country as far as the watershed-line, which position of Law Messrs. Monroe and Pinckney, the Commissioners of the United States, then alleged to have been com- pletely established by the Controversy between France and Spain on the one hand, and Great Britain on the other, which produced the War of 1755 be- tween those Nations. It is obvious that a claim to all the lands watered by a river and its tributaries, founded on the disco- very and occupation of the mouth of the river, must conflict with a claim to all the inland territory as far as the line of watershed, founded in the discovery and occupation of an extent of seacoast, about which latter position of Law there is no dispute amongst Nations. Such a claim is, in the second place, mcon- sistent with the position of Law, that the occupation de facto of one bank of a river and the river itself by one Nation, does not estabhsh a Right of Possession over the opposite bank, so as to exclude another Na- ^'' Camdeni Anui.les, anno 1580. Settle- ment. KIGHT OF ACQUISITION. 175 tion from settling upon it, if it should be vacant de facto. The doctrine of the United States Commis- sioners against which Great Britain considered it equally due to herself and to other Powers to enter her protest, may therefore be regarded as extrava- gant, since it derives no countenance from the Law of Nature, which regards rivers as appurtenant to land, and not land as adherent to rivers, and it can- not be admitted without derogating from established rules of Pubhc Law acknowledged by all Nations. ^120. Settlement, when it has supervened on Dis- mght oi covery, constitutes a perfect title, but a title by settle- ment when not combined with a title by discovery is in itself imperfect, and its immediate validity will depend upon one or other condition, that the right of discovery has been waived de jure by non-user, or that the right of occupancy has been renounced de facto by the abandonment of the territory. Acqui- sition by settlement is distinguished from acquisition by discovery and acquisition by occupancy in this respect, that no second discovery, no second occu- pancy can take place, whereas a series of settlements may have been successively made, and each of them in its turn abandoned, and the last settlement may, under given circumstances, constitute an exclusive title. Again, the presumption of Law will always be in favour of a title by settlement. " Commodum pos- sidentis in eo est, quod etiamsi ejus res non sit, qui possidet, si modo actor non potuerit suam esse pro- bare, remanet suo loco possessio ; propter quam cau- sam, cum obscura sint utriusque jura, contra petito- rem judicari solet."^^ Where title by settlement is superadded to title by discovery, the Law of Nations will acknowledge the settlers to have a perfect title ; but where title by -7 Justin. Institut, L. IV. Tit. 15. § 4. 176 KIGHT OP ACQUISITION. settlement is opposed to title by discovery, although no Convention can be appealed to in proof of the dis- covery having been vi^aived, still, a tacit acquiesence on the part of the Nation, that asserts the discovery, during a reasonable lapse of time since the settlement has taken place, will bar its claim to disturb the set- tlement. Thus Mr. Wheaton writes : — The constant and approved practice of Nations shews, that by whatever name it be called, the uninterrupted pos- session of territory or other property for a certain length of time by one State excludes the claim of every other, in the same manner as by the Law of Nations, and by the Municipal Code of every Civilised Nation, a similar possession by an individual excludes the claim of every other person to the article of pro- perty in question. This rule is founded upon the supposition, confirmed by constant experience, that every person will naturally seek to enjoy that which belongs to him ; and upon the inference, fairly to be drawn from his silence and neglect, of the original defect of his title, or of his intention to relinquish it."^ Title by settlement, though originally imperfect, may be thus perfected by enjoyment during a reason- ble lapse of time, the presumption of Law from un- disturbed possession being, that there is no prior owner, because there is no claimant, and no better proprietary right, because there is no asserted right. The silence of other parties raises a presumption of their acquiescence, and their acquiescence raises a presumption of a defect of title on their part, or of an abandonment of their title. A title once abandoned whether tacitly or expressly, cannot be resumed. " Celui qui abandonne une chose cesse d'en etre le -'i Elements of International Law, part II. c. iv. § 5. EIGHT OF ACQUISITION. 177 maltre, et par consequent une chose abandonnee de- vient luie chose qui nest h, personne."^' ^121. Title by settlement, then, as distinguished Usuoap- from title by discovery, when set up as a perfect presorip- title, resolves itself into title by usucaption or pre- *'°°- scription.^^ Wolfif defines usucaption to be an ac- quisition of domain founded on a presumed deser- tion. YatteP" says it is the acquisition of domain founded on a long possession, uninterrupted and undisturbed, that is to say, an acquisition solely proved by this possession. Prescription, on the other hand, according to the same author, is the ex- clusion of all pretensions to a right, an exclusion founded on the length of time during which that right has been neglected, or, according to De Wolff's definition, it is the loss of an inherent right by virtue of a presumed consent. Vattel writing in French, and observing that the word usucaption was but little used in that language, made use of the word prescrij)- tion, wherever there were no particular reasons for employing the other expression. The same remark may be applied in reference to oiu" own language, and thus this title is generally spoken of as title by prescription. What lapse of time is requisite to found a vahd title by prescription has not been defi- nitely settled. The Law of Nature suggests no rule. Where, however, the claimant cannot allege undoubted ignorance on his part or on the part of those from whom he derives his right, or cannot justify his silence by laAvful and substantial reasons, or has neglected his right for such a number of years as to allow the respective rights of the two parties to become doubtful, the presumption of abandonment s9 Wolfif, Institutions du Droit de la Nature et des Gens, § 23. 30 Droit des Gens, L. II. c. 11. § 140. PABT I. N 178 EIGHT OP ACQUISITION. will be established against him, and he will be ex- cluded by ordinary prescription. Lapse of time, in the case equally of Nations as of individuals, robs the parties of the means of proof ; so that if a bond fide possession were allowed to be questioned by those who have acquiesced for a long time in the enjoyment of a thing by the possessor of it, length of possession, instead of strengthening, would impair the title of the possessor : the inconvenience of such a result is so obvious, that the practice of Nations and individuals has equally repudiated it. Tenitory f 1 2 2 . Thus vn regard to the territory of the Hudson's son's Bay Bay Company, it was alleged in the negociations pre- Oompany. li^^inary to the treaty of Utrecht, that the French had acqmesced in the settlement of the Bay of Hud- son by the Company incorporated by Charles II. in 1663, since M. Fontenac, the Governor of Canada, in his correspondence with Mr. Baily, who was Governor of the Factories in 1637, never complained, "for se- veral years, of any pretended injury done to the French by the said Company's settling a trade, and building of forts at the bottom of the Bay^^" The King of England, it is true, in his Charter had set forth the Title of the British Crown, as founded on discovery ; the title by discovery, however, required to be perfected by settlement ; and thus, in the ne- gociations, the subsidiary title by settlement was like- wise set up by the British Commissioners, and the acquiescence of the French was alleged, either as a bar to their setting up any conflicting title by disco- very, or as establishing the presumption of their hav- ing abandoned their asserted rights of discovery^l 3' General Collection of Trea- 3J Twiss on The Oregon Ques- t'es, &c., London, 1710-33, vol. I. tion, p. 171. p. 446. RIGHT OF ACQUISITION. 179 ^123. What extent of territory is dejure append- night of ant to the settlement of a Nation in a given place by reason of Contiguity, must depend upon the circum- stances of each case. It may sometimes be determined without difficulty by the geographical features of the Country, but in many cases it will be governed by considerations founded on the necessary uses of the settlers. The principle of Vicinitas, as appHed in the Jurisprudence of Imperial Rome, has been admitted by the usage of Nations to control this question in the absence of special circumstances. Thus in the case of alluvial deposits, the Roman Jurists held that the possessor of the adjoining bank of a river had a proprietary title to them, and if an island were formed in the channel of the river, the possessor of the neighbouring bank had a right of property in it ; on the other hand, if an island were formed in the mid- channel, it would be the common property of the owners of the two banks. Thus, " Quod per alluvio- nem agro nostro flmnen adjecit, jure gentium nobis acquiritur^^ ;" again, " Insula nata in flumine, quod frequenter accidit, si quidem mediam partem fluminis tenet, communis est eorum, qui ab utraque parte flu- minis prope ripam prsedia possident, pro modo latitu- dinis cuj usque fundi, quae latitude prope ripam sit ; quod si alteri parti proximior est, eorum est tantum, qui ab ea parte prope ripam praedia possident 'I" A different practice in the case of Nations, whereby such newly formed lands should be open to the occupancy of the first comer, woxild manifestly be inconsistent with the security of the Nation, which had previously estabhshed itself on the adjoining or neighbouring bank. Upon the like considerations of security, islands which have been formed by the accumulation of mud 32 Dig., 1. XL. t. I. § 7. 3,' Inst. II. tit. i. § 22. N 2 180 EIGHT OF ACQUISITION. and drift at the mouth of a river, and which keep sentinel as it were over the approaches to the main- land, are regarded as natural or necessary append- ages of the Coast on which they border, and from which they are formed. " Consider," says Lord Stowell in the case of certain islands at the entrance of the River Mississippi, " what the consequences would be, if lands of this description were not considered as ap- pendant to the mainland, and as comprised within the bounds of territory. If they do not belong to the United States of America, any other Power may oc- cupy them, they might be embanked and fortified. What a thorn would this be in the side of America ! It is physically possible at least, that they might be so occupied by European Nations, and then the com- mand of the river would be no longer in America, but in such settlements. The possibdity of such a conse- quence is enough to expose the fallacy of any argu- ments that are addressed to shew, that these islands are not to be considered as part of the Territory of America^*." Aroifinjons ^124- A title to Territory by reason of contiguity, states. (ratione vicinitatis), in the case of arcifinious States, so called according to Yarro^' because their territory admits of boundaries fit to keep the enemy out, (fines arcendis hostibus idoneos), in other words, of States whose territory admits of practical limits, such as rivers and mountains, is a reciprocal title. In such cases each State has an equality of right, so that the watershed-hne or line of greatest elevation in the case 34 The Anna, 3 Robinson's because such lands had no boun- Eep. p. 385. daries (fines) fixed and deter- 35 Grotius adopts the deriva- mined by any artificial measure, tion of Varro. His Commentator De Jure Belli et Pacis, L. II. c. 3. Barbeyrac approves the etymo- c. 3. §16. )ogy given by Gronovius, namely, MGHT of ACQlflSITION. l8l of mountains, and the Thalweg or mid-channel, in the case of rivers, which corresponds to a line drawn along the lowest part of the bed of the river or the hne of deepest depression, forfns the jm-idical boundary be- tween two such States. The practice of Nations has conformed to this principle in regard to territory which is not arcifinious, in cases where there is intermediate vacant land contiguous to the settlements of two nations. Each Nation has an equal title to extend its settlement over the intermediate vacant land, and thus it happens that the middle distance satisfies the jtiridical title, whilst it is the nearest approximation to a natural boundary, and the most convenient to determme. Thus the United States of America in their discussions with Spain respecting the Western boundary of Louisiana, contended that " whenever one European Nation makes a discovery, and takes pos- session of any portion of that Continent, (America,) and another afterwards does the same at some dis- tance from it, when the boxmdary between them is not determined by the principle above mentioned, (namely, that when a Nation takes possession of an extent of sea-coast, it has a right of possession over the interior country coextensive with the waters of the rivers emptying within that coast), the middle distance becomes such of course -^^.'^ So, in the case of a river, the opposite banks of which are possessed by different Nations, the Thalweg or mid-channel is the Normal water-boundary be- tween them. Circumstances however may create ex- ceptions, as for instance, when the control of a district not actually reduced into the possession of a Nation, is necessary for its security, and is not essential to the security of the conterminous State. " No Nation," writes Vattel, " can lawfully appropriate to herself a 3* British and Foreign State Papers, 1817-18. p. 328, 182 RIGHT OF ACQUISITION. too disproportionate extent of country, and reduce other Nations to want subsistence and a place of abode. A German Chief in the time of Nero said to the Romans, 'As Heaven belongs to the Gods, so the Earth is given to the human race, and desert countries are common to alPV giving those proud conquerors to imderstand that they had no right to reserve and ap- propriate to themselves a coimtry which they left desert. The Romans had laid waste a chain of coun- try along the Rhine, to cover their proAonces from the incursions of the Barbarians. The remonstrance of the German Chief would have had a good foundation, had the Romans pretended to keep without reason a vast country which was of no use to them ; but those lands which they would not suffer to be inhabited, servuag as a rampart against foreign Nations, were of considerable use to the Empire ^^'" Discovery § 1 25. " There is another celebrated question," writes WorU. ^^ Vattel, " to which the discovery of the New World has given rise. It is asked whether a Nation may lawfully take possession of some part of a vast coun- try in which there are none but erratic Nations, whose scanty population is incapable of occupying the whole. We have already observed in estabhshing the obhga- tion to cultivate the Earth, that those Nations cannot exclusively appropriate to themselves more land than they have occasion for, or more than they are able to settle and cultivate. Their unsettled habitation in those immense regions cannot be accoiuited a true and legal possession, and the people of Europe too closely pent up at home, finding land of which the savages stood in no particrdar need, and of which they made no actual or constant vise, were lawfully entitled to take possession of it, and settle it with colonies. 37 Sicut coBlum Diis, ita terras vacuDe, eas publicas esse. generi mortalium datas ; quEeque 38 Droit dea Gens, L. II. § 86. EIGHT OP ACQUISITION. 183 The Earth, as we have ahready observed, belongs to mankind in general, and was designed to furnish them with subsistence. If each Nation had from the begin- ning resolved to appropriate to itself a vast country, that the people might hve only by hunting, fishing, and wild fruits, our Globe would not be sufficient to maintain a tenth part of its present inhabitants. We do not therefore deviate from the views of Nature in confining the Indians within narrow limits'^." Vattel has elsewhere observed, " Those who still pursue this idle mode of hfe, (namely, who to avoid labour choose to live by hunting and by their flocks,) usurp more extensive territory than with a reasonable share of labour they would have occasion for, and have there- fore no reason to complain if other Nations, more in- dustrious and more closely confined, come and take possession of part of those lands. Thus, though the conquest of the civUised empires of Peru and Mexico was a notorious usurpation, the establishment of many Colonies on the Continent of North America, might, on their confining themselves within just bounds, be extremely lawful. The people of those extensive tracts rather ranged through than inhabited them*'." f 126. " On the discovery of this immense Continent," settle- to quote the words of Chief Justice MarshaU*\ " the "^^^^^ great Nations of Europe were eager to appropriate to woria. themselves so much of it as they could respectively acquire. Its vast extent ofiered an ample field to the ambition and enterprise of aU ; and the character and religion of its inhabitants afibrded an apology for considering them as a people over whom the superior Genius of Europe might claim an ascendency. The 39 Droit des Gens, L. I. § 209. 4i Johnson v. M<'Intosh. 8 40 Ibid. § 81. Wheaton, p. 573. 184 RIGHT OF ACQUISITION. Potentates of the Old World found no difficulty in convincing themselves that they made ample compen- pensation to the inhabitants of the New World, by bestowing on them Civilisation and Christianity in exchange for Independence. But as they were aU in pursuit of nearly the same object, it was necessary, in order to avoid confficting settlements and consequent war with each other, to establish a principle, which all shoidd acknowledge as the law by which the Right of Acquisition, which they all asserted, should be regulated as between themselves. This principle was, that Discovery gave title to the Government, by whose subjects or by whose authority it was made, against all other European Governments, which title might be consummated by possession. The exclusion of all other Europeans necessarily gave to the Nation, making the discovery, the sole right of acquiring the soil from the Natives and estabhshing settlements upon it. It was a right with which no Europeans could interfere. It was a right which aU asserted for themselves, and to the assertion of which by others aU assented. Those relations, which were to exist between the Discoverer and the Natives, were to be regulated by themselves. The Right thus acquired being exclusive, no other Power could interfere be- tween them." " In the estabhshment of these relations, the Rights of the original Inhabitants were in no instance en- tirely disregarded, but were necessarily, to a consider- able extent, impaired. They were admitted to be the rightful occupants of the soU, with a legal as well as a just claim to retain possession of it, and to use it according to their own discretion ; but their Rights to complete Sovereignty, as Independent Nations, were necessarily diminished, and their power to dispose of EIGHT OF ACQUISITION. 185 the soil at their own will to whomsoever they pleased, was denied by the original fundamental principle, that discovery gave exclusive title to those who made it. Wliile the different nations of Europe respected the Right of the Natives, as occupants, they asserted the ultimate dominion to be in themselves ; and obtained and exercised, as a consequence of this ultimate do- minion, a power to grant the sod, while yet in the possession of the Natives. These grants have been understood by all to convey a title to the grantees, subject only to the Indian Right of Occupancy." §127. The United States have consequentlv ad- Possessory 1 1 , ,1 , T , -n TVT Eight of hered to the customary rule amongst iLuropean JNa- Native tions with regard to Territorial Title, " The title of ^'''''''"''■ the European Nations," says Chancellor Kent*^ " and which passed to the United States, to this immense Territorial Empire was founded on Discovery and Conquest ; and by the European customary Law of Nations, prior discovery gave this title to the soil, subject to the Possessory Right of the Natives, and which occupancy was all the Right which European conquerors and discoverers, and which the United States, as succeeding to their title, would admit to reside in the native Indians. The principle is, that the Indians are to be considered merely as occupants, to be protected while in peace in the possession of their lands ; but to be incapable of transferring the absolute title to any other than the Sovereign of the country, who has an exclusive right to extinguish the Indian title of occupancy either by purchase or by conquest." ^128. The question whether agriculturists andAgncui- manufacturers have a right on abstract principles relation to to expel shepherds from their pasture-grounds, or p^^*"''«- 42 Commentaries on American Law, B. I. p. 258. 186 RIGHT OF ACQUISITION. hunters from the territory over which they range in pursuit of game, or to contract the limits within which they shall exercise their avocations, has thus been discussed by Yattel"^ : " Families which wander in a country, as pastoral people, and which range through it as their wants require, possess it in com- mon. It belongs to them, to the exclusion of aU other Nations, and we cannot without injustice de- prive them of the tracts of coimtry of which they make use. But let us here recollect what we have said more than once**. The Savages of America had no right to appropriate all that vast Continent to themselves, and since they were unable to inhabit the whole of those regions, other Nations might, without injustice, settle in some parts of them, pro- vided they left the Natives a sufficiency of land. If the pastoral Arabs would carefully cultivate the soil, a less space might be sufficient for them. Never- theless no other Nation has a right to narrow their boundaries, unless it be under an absolute want of land. For in fact they possess their country ; they make use of it after their manner ; they reap from it an advantage suitable to their mode of Hfe, respecting which they have no laws to receive from any one. In a case of pressing necessity, I think, people might without injustice settle in a part of that country, on teaching the Arabs the means of rendering it, by the cultivation of the Earth, sufficient for their own wants and those of the new inhabitants." The Indian f 129. This qucstion has been treated with great ''^'*'*' lucidity and moderation in a judgment of Chief Jus- tice Marshall ''^ ; "Although we do not mean to engage 43 L. II. § 97. ^ 45 Johnson and Gi-aham's les- 44 L. I. § 81. and § 209. L. II. see against M<=Intosh. 8 Wheaton, §86. p. 589- RIGHT OF ACQUISITION. 187 in the defence of those principles which Europeans have applied to Indian Title, they may, we think, find some excuse, if not justification, in the character and habits of the people whose rights have been wrested from them. " The Title by Conquest is acquired and main- tained by force. The conqueror prescribes its limits. Hiunanity, however, acting on public opinion, has estabUshed as a general rule, that the conquered shall not be wantonly oppressed, and that their condition shall remain as ehgible as is compatible with the objects of the conquest. Most usually, they are in- corporated with the victorious Nation, and become subjects or citizens of the government with which they are connected. The new and old members of the Society mingle with each other ; the distinction between them is gradually lost, and they make one People. Where this incorporation is practicable, humanity demands, and a wise pohcy requires, that the rights of the conquered to property should re- main unimpaired ; that the new subjects should be governed as equitably as the old, and that confidence in their security should gradually banish the painful sense of being separated from their ancient connexions, and united by force to strangers. " When the conquest is complete, and the con- quered inhabitants can be blended with the con- querors, or safely governed as a distinct people, pubhc opinion, which not even the conqueror can disregard, imposes these restraints upon him ; and he cannot neglect them without injury to his fame, and hazard to his power. " But the tribes of Indians inhabiting this coiuitry were fierce savages, whose occupation was war, and whose subsistence was drawn chiefly from the forest. 188 EIGHT OF ACQUISITION. To leave them in possession of their country, was to leave the country a wildemess ; to govern them as a distinct people was impossible, because they were as brave and high spirited as they were fierce, and were ready to repel by arms every attempt on their Inde- pendence. " What was the inevitable consequence of this state of things 1 The Europeans were under the necessity either of abandoning the country, and re- hnquishing their pompous claims to it, or of enforcing those claims by the sword ; and by the adoption of principles adapted to the condition of a people with whom it was impossible to mix, and who could not be governed as a distinct Society ; or of remaining in their neighbourhood, and exposing themselves and their families to the perpetual hazard of being mas- sacred. " Frequent and bloody wars in which the Whites were not always the aggressors, ■unavoidably ensued. European policy, niunbers, and skill, prevailed. As the white population advanced, that of the Indians necessarily receded. The country in the immediate neighbourhood of agTicultiuists became rmfit for them. The game fled into thicker and more tmbroken forests, and the Indians followed. The soil to which the Crown originally claimed title, being no longer occu- pied by its ancient inhabitants, was parcelled out according to the will of the Sovereign Power, and taken possession of by persons who claimed imme- diately from the Crown, or mediately, through its grantees or deputies. " That Law which regulates, and ought to regulate in general, the relations between the conqueror and conquered, was incapable of appHcation to a people under such circumstances. The resort to some new RIGHT OP ACQtriSITION. 189 and different rule, better adapted to the actual state of things, was unavoidable. Every rule which can be suggested will be found to be attended with great difficulty. "However extravagant the pretension of convert- ing the discovery of an inhabited country into con- quest may appear ; if the principle has been asserted in the first instance, and afterwards sustained ; if a country has been acquired and held under it ; if the property of the great mass of the community origi- nates in it, it becomes the Law of the Land, and can- not be questioned. So too, with respect to the con- comitant principle, that the Indian inhabitants are to be considered merely as occupants, to be protected, indeed, while in peace, in the possession of their lands, but to be deemed incapable of transferring the abso- lute title to others. However this restriction may be opposed to Natural Right, and to the usages of Civil- ised Nations, yet if it be indispensable to that system under which the country has been settled, and be adapted to the actual condition of the two people, it may, perhaps, be supported by Keason, and certainly cannot be rejected by Courts of Justice." § 130. Derivative Acquisition as distinguished fromi Derivative Original Acquisition results from Indirect or Direct ^"n"'^'' Cession. Indirect Cession takes place, when a Na- tion vanquished in war abandons a territory, and the Nation which has overrun it remains in possession of it. Direct Cession, on the other hand, is announced by some Act of a declaratory nature, whereby a Na- tion explicitly devolves its territorial rights to another Nation. The object of Direct Cession is sometimes to prevent a war, but most frequently to cement a peace. The repeated occurrence of such Direct Ces- sions in later times has led Jm-ists to make a distinc- 190 RIGHT OP ACQUISITION. tion accordingly between Acts which place on record such Cessions, and Treaties properly so called. " The compacts," writes Vattel,** "which have temporary matters for their object are called agreements, con- ventions, and pactions. They are accomplished by one single Act and not by repeated Acts. The com- pacts are perfected in their execution once for aU ; treaties receive a successive execution whose duration equals that of the treaty." Martens,*' to the same purport writes, " On divise ensuite en general les traites en conventions transitoires, qui s'accomphs- sent d'un seul coup, et en traites proprement dits, qui obhgent a des prestations successives, quoique dans la pratique on ne suive pas toujoTU-s cette distinction dans le choix des termes dont on designe les arrangemens faits entre les nations. Les traites de cession, de limites, dechange et ceux memo qui constituent une servitude de droit public, ont la nature des conventions transi- toires ; les traites d'amitie, de commerce, de navigation, les alliances egales et iuegales, ont celle des traites proprement dits (foedera). Les conventions transi- toires sont perpetuelles par la nature des choses, de sorte qu'une fois accomphes, elles subsistent indepen- damment des changemens survenus dans la personne du monarque, dans la forme du gouvemement, et meme dans la Souverainte de 1 etat contractant, tant qu'elles n'ont pas ete mutuellement revoquees ; vuie guerre meme, siu-venue pour un autre motif, ne les fait pas tomber d' elles memes, quoiqu'ehe autorise a en suspen- dre I'effet et quelquefois a les revoquer." To tlie same effect, Mr. Wheaton*^ says, " General Compacts between Nations may be divided into what are called transitory conventions and treaties properly so called. 4'^ L. II. § 163. 47 Prdcis de Droit des Gens, § 58. 48 Elements of International Law, Part II. c. 4. § 9. RIGHT OF ACQUISITION. 191 The first are perpetual in their nature, so that, being once carried into effect, they subsist independent of any change in the Sovereignty and form of Govern- ment of the Contracting Parties, and although their operation may in some cases be suspended during war, they revive on the return of peace without any express stipulation. Such are treaties of cession, boundary, or exchange of territory, or those which create a permanent servitude in favour of one Nation within the territory of another." § 131. In the case of Indirect Cession, which takes Title by place by abandonment to an invading enemy, a con- firmation of it is for the most part suppHed by a sub- sequent treaty of peace concluded on the basis of " uti possidetis," whereby it is agreed that either Nation shall remain in possession of the territory which it has acquired during the war. But such Indirect Cession, although it remains incomplete during the war, seeing that there may be a change at any mo- ment in the fortune of arms, does not require any such explicit confirmation in order to make it com- plete. If peace be concluded, without any stipulation for the restoration of territory on either side, the Na- tion which has wrested during the war a town or a province fi^om another Nation, acquires a lawful title to it by the conclusion of a treaty of peace with that Nation. The conclusion of the treaty of peace with- out reference to any restitutions is a tacit consent on the part of the Nation, fi:'om which a town or pro- vince has been wrested, that it should permanently remain in the hands of the conqueror ; seeing that the worsted nation undertakes by concluding peace not to have recourse to force of arms for the recovery of its former possessions. " The effect of a treaty of 192 EIGHT OF ACQUISITION. peace," writes Vattel,** " is to put an end to the war, and to abolish the subject of it. It leaves the Con- tracting Parties no right to commit any acts of hostihty, on account either of the subject itself which had given rise to the war, or of anything that was done during its continuance ; wherefore they cannot lawfully take up arms again for the same purpose." Title by Conquest thus resolves itsel£ juridically into Title by Cession, and it is not the superior power of the conqueror which gives right to his conquest, but it is the consent of the conquered, which xiltiinately sanctions the conqueror's right of possession. 49 Lib. IV. c. 2. § 19. Grotius de Jure B. et P. L. III. c. 9. § 4. aud c. 20. § 10. CHAPTER VIII. EIGHTS OF POSSESSION. The Territory of a Nation — Extension of Territory — Empire a primary Territorial Eight — Empire distinct from Domain — Empire over things which cannot be appropriated — Empire over Territorial Rivers — Modification of Eight of Empire by Compact — Empire over Frontier Eivers — Treaty Stipulations as to use of Frontier Rivers. Conventional Law of Europe as to Great Eivers — The Thalweg or Midchannel the boundary of Conterminous States — Right of Allu- vion — Prescriptive Rights over Eivers — The Stade or Brunshausen Toll. ^136. Having considered in the previous chapter The tem- the conditions under which a Nation may rightfully N^ion * acquire possession of a country, we may proceed to consider the rights which a Nation may exercise by virtue of such possession ; in other words, the jura possessionis, as distinguished from the jus possidendi. "When a Nation," writes Vattel\ "takes possession of a country, it is considered as acquiring the empire or sovereignty over it at the same time with the domain^. For since the Nation is Free and Inde- pendent, it cannot be its intention in settling in a country to leave to others the right to command, or any of those rights which constitute Sovereignty. The whole space over which a Nation extends its government becomes the seat of its jurisdiction, and is called its territory." To the same effect De Wolff writes, " Si gens qusedam regionem vacuam occupat, imperium in ea simul occupat'." ' Droit des Gens, L. I. § 205. quatenus ab imperio distinguitur. 2 In his autem, quse proprie Grotius de Jure B. et P. L. II. nullius sunt, duo sunt occupa- c. 3. § 4. bilia, imperium et dominium 3 Jus Gentium, § 85. PART I. O 194 RIGHTS OF POSSESSION. Extension § 137- I^ i^i immaterial for the purposes of Empire tory. as between Nations, whether a Nation acqiiires pos- session of a coimtry by extending its pohtical body coordinately, or by founding subordinate Political Bodies in the nature of Dependencies. Thus the Union of the North American States has extended itself over the North American Continent, by the admission of Coordinate States into the Union, on a footing of equality with the older and Sister States ; whereas the monarchical States of Europe have ex- tended themselves by Colonisation or by foimding new States in Dependence upon themselves as Parent States. The pohtical pecuHarities, which distinguish these different forms of National growth, as practised by the Nations of the New World and the Old World respectively, are notable ; but they are matters which concern the Internal organisation of States, and have no necessary bearing upon their International rela- tions. The foiuiding of a new State in a condition of Pohtical Dependence upon the Mother Country, con- stitutes as much an extension of a Nation's territory in regard to other Nations, as the incorporation of a new State into a National system of Coordinate States. In both cases the Nation consists of the aggregate body of States, and in the language of arithmeticians, the International Unit may be said to be a multiple pohtical number, of which the compo- nent States are in the one case all whole numbers, and in the other case are one or more whole numbers and several fractions of a whole number. Accordingly, when a Nation takes possession of a distant country and settles a colony there, that Country, though separated from the principal esta- bhshment or Mother Coimtry, naturally becomes a part of the State equally with its ancient possessions. RIGHTS OF POSSESSION. 195 Whenever, therefore, the Pohtical Laws or Treaties make no distinction between them, anything said of a Nation must also apply to its Colonies'*. § 138. The exercise of Empire as between Nations Empire a is thus an incident of territorial possession. Empire territorial is in fact a primary territorial right, and the Empire "^ ^'' of a Nation is supreme ratione loci over every person and every thing within its territory. " Quic- quid est in territorio, est de territorio^." Its opera- tion however is sometimes suspended by Comity or by Compact, but a claim of extra-territoriality, or of immunity from the Law of the territory (lex loci), is strictly exceptional ; the general presumption of the Jus inter Gentes being adverse to it. There are cases however in which the Comity of Nations has suspended the exercise of certain rights of Empire (Jura imperii)® so uniformly, that a Custom has grown up whereby the exceptio7i has acquired the character of Laiv ; as for instance in regard to the immunity from the Lex Loci, which is extended to the Pubhc Ministers of Foreign Princes, notwith- standing they should be permanently resident within the territory of another Nation, and thereby normally subject to its Empire. § 139. The Right of Empire or Jurisdiction is dis- Empire tinguished from the Eight of Dominion or Property. from"domi When a Nation takes possession of a vacant tract of ""*"• land, it acquires under ordinary circumstances the Dominion or fullest Right of Property over it con- currently with the Right of Empire. " Si gens re- gionem quandam occupavit, omnis terra et quse in ea 4 Vattel, L. I. § 210. ibidem commoi-entur, nisi sub 5 Hefiiter, §67. hac conditione ut legibus loci 6 Dominus territorii non per- subsint eorum actiones. Wolffii mittere intelligitur peregrinis, ut Jus Gentium, § 299. Grotius, L. in territorio sue versentur, vel II. c. 11. § 2. O 2 196 EIGHTS OP POSSESSION. sint, in dominio ipsius sunt'." This Right of Domi- nion or Property gives to a Nation a right to exclude all other Nations from the enjoyment of the territory of which it has taken possession, and its Right of Empire warrants a Nation to enforce its own sanc- tions against all who would intrude upon its terri- tory. Although, however, the Right of Empire accompanies the Right of Property in the case of International Possession, they are not necessarily concurrent rights^, but the Right of Empire may be enjoyed by a Nation over certain things, in which it is incapable of acquiring an absolute Right of Pro- perty. " Acquiri imperium potest, etsi res singulse natura in dominium venire non possunt^" Empire X j .q_ ^]^g Roman Jurists regfarded certain things over things •', „ . . -2 which can- as uicapable by nature of being appropriated. " Et propriated. quidcm uaturaH Jure communia sunt omnium hsec, aer, aqua profluens, et mare, et per hoc htora maris ^''." It is obvious that the air, running water, and the sea, are not susceptible of detention, and consequently cannot be physically reduced into possession, so as to give rise to that permanent relation, which is impHed in the Jm-idical notion of property. " Again Nature does not give to man a right of appropriating to him- self things which may be imiocently used, and which are inexhaustible and sufficient for all. For since those things, while common to all, are sufficient to supply the wants of each, whoever should, to the exclusion of all other participants, attempt to render himself sole proprietor of them, would unreasonably seek to wrest the bounteous gifts of Nature from the 7 Wolff, Jus Gentium, § 274. rium et dominium, sunt autem 8 Gunther, L. II. § 1 7 . distincta. Grotius, L. II. c. 3. 9 Quamquam autem plerum- § 4. 2. que uno actu quseri solent impe- '° Just. Inst. L. II. Tit. I. § i. RIGHTS OF POSSESSION. 197 parties excluded". There is accordingly no warrant of Natural Law for an absolute Right of Property in the running water of rivers (aqua perennis) any more than in the tidal water of the sea. But if the free and common use of a thing of this nature (namely which is of itself inexhaustible) be prejudicial or dangerous to a Nation, the care of its own safety wUl entitle it so far, and so far only, to control the use of it by others, as to secure that no prejudice or danger result to itself from their use of it. A Nation may accordingly have a Right of Em^nre over things which are nevertheless by nature communis ustls, and over which it cannot acquire an absolute Right of Property ; as, for instance, over portions of the High Seas, or over rivers which form the boundary of its territory. The Hmits, within which the safety of a Nation warrants such an exercise of Empire, will be considered hereafter. § 141. A river, of which both banks are in the pos- Empire session of one and the same Nation, may be regarded as tonal a stream of water contained in a certain channel, which ^'^**'"'^- channel forms part of the territory of the National Such water accordingly, whilst passing through the territory of a Nation, is subject, like all other things within its territory, to the Empire of the Nation, and those who navigate upon it are subject to the Juris- diction of the Nation ratione loci. The exercise of the Right of Empire over such a river by a Nation, whilst it flows through its territory, does not in any wise mihtate against the use of it as running water by other Nations, or conflict with the exercise of their corresponding Right of Empire over it, whilst it flows through their respective territories. We find accord- " Vattel, L. I. § 280. 12 Grotius de Jur. B. et P., L. II. c. 14. § 7. 198 RIGHTS OF POSSESSION. ingly by the practice of Nations, that a Nation having physical possession of both banks of a river is held to be in juridical possession of the stream of water con- tained within its banks, and may rightfully exclude at its pleasure every other Nation from the use of the stream, whilst it is passing through its territory, and this rule of Positive Law holds good whatever may be the breadth of a river. Moreover, the fact, that other Nations have freely navigated the stream before both banks of a river have come into possession of one and the same Nation, will not control the opera- tion of this rule. Thus the recognition of the Inde- pendence of the Seven United Provinces by the peace of Munster on the part of Spain ^^ (Jan. 30, 1648) carried with it the recognition of their right to close the navigation of the Hiver Scheldt in all its branches within their territory. The same rule was appUed to the stream of the Mississippi, below the point where the Southern Boundary of the United States struck that river, by Spain, after the Spanish Nation had acquired possession of both banks, al- though the navigation of the entire river had been previously common to all Nations whilst it formed a common Boundary of the French and British Posses- sions. The United States of North America con- tested at first the claim of Spain, but were fain to conclude the dispute by the Convention of San Lo- renzo el Real,^^ under which the free navigation of the entire river was conceded by Spain to citizens of the United States in common with subjects of Spain. At a subsequent period after Louisiana and Florida had been ceded to the United States, the entire river became included within the Territory of the North II Schmauss, Corp. Jur. Gent. I. p, 6t8. '- Martens, Recueil, VI. p. 146. RIGHTS OF POSSESSION. 199 American Union ; the United States have thereupon asserted in their turn their Right of Exclusive Use over the entire stream, and have, in virtue of their Right of Possession, prohibited all other Nations from the navigation of any portion of the river. In a similar manner Great Britain maintains her exclusive right over the stream of the St. Lawrence during its pas- sage through British Territory. By the Treaty, how- ever, of Washington'^ (5 June, 1854), Great Britain has agreed, that the citizens and inhabitants of the United States shall have the right of navigating the river St. Lawrence and the canals in Canada used as the means of communication between the great Lakes and the Atlantic Ocean, as fully and freely as the subjects of her Britannic Majesty, it being understood, however, that the British Government, retains the right of suspending this privilege on giving due notice thereof to the Government of the United States. It may be observed in regard to this Rigid of Ex- clusive Use, which a Nation that is in possession of both banks exercises over the stream of a navigable river, that a Nation so estabhshed has a physical power of constantly acting upon the stream, and of excluding at its pleasure the action of any other Na- tion, which power constitutes Juridical Possession. On the other hand the stream, whilst it is included within the territory of a Nation, cannot be considered to be destined by the Creator to continue open to the common use of mankind any more than the banks and adjacent lands, which have been appropriated and so withdrawn from common use. Nature would thus appear to have interposed neither a material '3 Martens, N. K. Gen. Tom. ration of twelve months after XVI. p. 502. This Convention either Xation shall give notice is to remain in force for ten to the other of its wish to termi- years, and further, until the expi- nate the same. 200 RIGHTS OF POSSESSION. obstacle nor a moral impediment to the exclusive use of a navigable river on the part of a Nation within certain territorial limits. That a river, whilst it flows through the territory of a Nation, should be regarded in any other light than as part of its Possessions, would seem to be inconsistent vdth the integrity of its territory, whilst it might be incompatible with its security, if the use of the river was not subject to its exclusive control. Modifioa- § 1 42. The cxercisc on the part of a Nation of its Compact, right to exclude other Nations from the use of its territorial waters has often been modified either ex- pressly or implicitly by Compact. Thus Spain, being in possession of both banks of the river Mississippi for some distance upwards from the sea, conceded to the citizens of the United States by the Treaty of San Lorenzo el Real, (anno 1795,) the free navigation of the river, from its source to its mouth, reserving how- ever the power to extend the same privileges to the subjects of other Powers by a Special Convention. In a similar manner it was agreed between Great Britain and the United States by the Eighth Article of the Treaty of Paris (17th Sept. 1783)," "that the navigation of the river Mississippi, from its source to the Ocean, should for ever remain free and open to the subjects of Great Britain and the citi2;ens of the United States." " The subsequent acquisition," writes Wheaton, " of Louisiana and Florida by the United States having included within their territory the whole river from its source to the Gulf of Mexico, and the stipulation in the Treaty of 1783, secitring to British subjects a right to participate in its naviga- tion, not having been renewed by the Treaty of Ghent 14 Martens Eecueil, HI. p. 559. EIGHTS OF POSSESSION. 201 in 1 8 14, the right of navigating the Mississippi is now vested exclusively in the United States." ^^ § 143. A Nation vsrhich has estabhshed itself on Empire one of the banks of a river, prior to the occupation of tier Rivera, the opposite bank by any other Nation, may, with a view to its own security, reduce the channel of the river into possession vdthout occupying the other bank.'^ It may for this purpose either station an armed fleet upon its waters, and thereby occupy the fairway of the river, or it may erect armed forts upon its own bank, and thereby command the fairway, and in either case it will be able effectively to ex- clude other Nations from the use of the river. Thus the Romans became sole masters of the Rhine, the Danube, and some other rivers, because the barbarians who inhabited on the other bank having no boats, the Romans constantly kept what they called "naves lusorise" upon them. So likewise the Repubhc of Paraguay in South America has estabhshed its pos- session of the channel of the river Paraguay which separates the territory of Paraguay from El Gran Chaco,'^'' and the Repubhc of Paraguay claims by right of established possession to exclude not merely the Indians of El Gran Chaco who inhabit the op- posite bank, but Nations of European origm, such as the Brazihan Nation which possesses the upper part of the river, and the Argentine Confederation which is in possession of the lower part of the river, from navigat- '5 Wheaton's Elements, Part lice stationed by the government II. c. 4. § 18. of Paraguay onboard of guardias >fi Wolffii Jus Gentium, § 106. and piquetes, each occupied by Vattel, Droit des Gens, L. I. from six to twelve men. La § 266. Plata and the Argentine Confe- 17 The Indians of the Chaco deration and Paraguay, by Tho- have no canoes. The river mas J. Page, U. S. N. London, throughout the extent of Para- 1859. p. 108. guay is occupied by a river-po- 202 KIGHTS OF POSSESSION. ing that portion of the river which separates the Repub- lic of Paraguay from the territory of the warlike Chaco tribes. '^ That a Nation which is settled on one of the banks of a river may nevertheless have a Right of Empire over the entire river, is thus noticed by Grotius. " But though, as I have said in case of any doubt, the jurisdictions on each side reach to the mid- dle of the river that runs between them, yet it may be, and in some places it has actually happened, that the river belongs wholly to one party, either be- cause the other Nation had not yet possession of the other bank tUl later, when their neighbours were already in possession of the whole river, or else be- cause matters were so stipulated by some treaty."" The sanction, which Usucaption or established posses- sion in such a case gives to the claim of a Nation to exclude other Nations from the use of a river, has not been overlooked by Vattel : " A long and undisputed possession establishes the Right of a Nation, other- wise there could be no peace, no stabiHty between them, and notorious facts must be admitted to prove Possession. Thus, when from time immemorial a Na- tion has without contradiction exercised the Sove- reignty upon a river which forms its boundary, no- body can dispute with that Nation the supreme dominion over it.^ Treaty sti- R j . ._ Grotius has remarked that a Riverain State pulations 1 ..,.. 1 . 1 IP as to Fron- may liave jmisdiction over the enture channel oi a ivers. j^^gj,^ ^Q ^^g exclusion of other Riverain States, " be- cause matters have been so stipulated by some Treaty." A remarkable instance of this occurs in the Treaty of '8 The warlike Chaco tribes power of the white man. have alone, amid the degi-ada- '9 De Jure B. et P. L. II. c. 3. tion of the native races upon the § 18. American Continent, defied for -- Droit dcs Gens, L. I. § l66. more than tlu-ee centuries the RIGHTS OF POSSESSION. 203 St. Germain en Lay (29 March, 1679), whereby the King of Sweden ceded to the elector of Brandenburg all his possessions on the right bank of the Oder, retaining his possession of the left bank, and whereby it was further expressly provided, that the river Oder itself should for ever remain under the Sovereignty of the Crown of Sweden, and that the Elector of Branden- burg should not erect any fortifications upon the bank ceded to him^. This exceptional arrangement had its origin most probably in the previous dispositions of the Treaty of WestphaHa, by which the Sovereignty of the Crown of Sweden over the river Oder was se- cured for ever, and with which, as forming part of the Pubhc Conventional Law of Europe, the Treaty of St. Germain en Lay was made to accord. Treaties, whereby a river has been ceded in its en- tirety (en entier) have been held to transfer not only the possession of the entire channel of the river, but both its banks as inseparable accessories to the river. Thus by the Treaty of Warsaw ( 1 8 Sept. 1773), Poland agreed that the entire river Netze should belong to Prussia, and Prussia contended, and was ultimately successful in her contention, that the cession of the entire river imphed the cession of the stream and both its banks. By a Hke interpretation, Sweden having obtained under the Treaty of Osnabruck (24 Oct. 1648) the cession of the entire river Oder from the Emperor of Germany, was held to have acqmred thereby possession of a margin of two German miles on the further bank, as an inseparable accessory to -^ La riviere de I'Oder, suivant denbourg d'eriger aucune forte- les dispositions des traites de resse ou de fortifier aucune place Westphalie, demeurera toujours dans I'entrevue du Pays qui lui en souverainte au Eoi et a la est cM6 par le present Traits. — couronne de Suede, «t il ne sera Dumont, Corps Diplomatique, pas libre au dit Electeur de Bran- XIII. p. 408. 204 RIGHTS OF POSSESSION. the stream. To what extent the use of the land on the bank or banks of a river may be regarded as ac- cessory to the use of the stream, has been a subject of dispute. Prussia, in her dispute with Poland re- specting the effect of her cession of the river Netze en eiitier, went so far as to claim all such portions of the opposite bank as the waters of the river in a state of inundation overflowed, as well as the marshes caused by such inundations, which claim Gunther^^ considers to have been in conformity with usage. It is obvious however that such a principle, if ge- nerally appHed, might lead to great complications. A different and a more definite principle was adopted by Russia in the Treaty of Adrianople concluded with the Ottoman Porte'^ (24 Sept. 1829). By this Treaty, the Porte in effect ceded the river Danube between the Pruth and the Black Sea in its entirety to Russia, for it was provided by Article III, that the frontier line should follow the course of the Danube from the con- fluence of the Pruth to the St. George's mouth, leaving all the Islands in possession of Russia, and the right bank of the Danube in possession, as heretofore, of the Porte. But it was further agreed that from the point where the St. George's branch separated from the Stdina branch of the Danube, the right bank of the river should remain uninhabited for the distance of two hours ^, and that no establishment of any kind should be formed upon it within that limit. Such a provision, whilst it effectively secured the navigation of the river from any control on the part of the Porte by virtue of its possession of the southern bank of the Danube, did not tend in any way to impair the -I Gunther, t. II. § 14. ^3 'Deux heures,' probably -^ Martens, N. R., t. VIII. about two German miles, ' Zwei p. 144. Stunde.' RIGHTS OF POSSESSION. 205 integrity of the Porte's possession of that bank. On the other hand, the rule of interpretation, whereby the ces- sion of a river en entier implies the cession of both its banks, as contended for by Prussia in the case of the river Netze, might operate to deprive a Nation of an important land-frontier, whilst it has in terms only ceded possession of a water-frontier. § 145. It was formerly the poHcy of Nations to con- Conren- sider rivers, equally with mountains, to be natural as to the barriers, and to regard them as turned to the most ^^ g^^p^J'^ useful purpose when employed as lines of international demarcation. Thus Grotius, borrowing a term of Law from the Civilians, writes, " But in any doubt of the bounds of a State, those lands that reach to some river are to be reckoned as arcifinious, because no- thing is so proper to distinguish jurisdiction as that which is of such a nature that it is not easUy passed over^*." The exclusive right to the use of a river has been accordingly maintained with great jealousy by Nations, as an important international right, seeing that a river might under such circumstances be con- verted into a fortified frontier. The Conventional Law of Europe has, in modem times, been adapted to larger and less selfish views. Thus the great navigable rivers of the Continent, which in their passage to the Ocean intersect various lands, sometimes passing through Territory in the exclusive possession of one and the same Nation, at another time forming a com- mon boundary between the Territories of two or more Nations, and of which the navigation has been hereto- fore in some parts totally impeded, and in others so burdened with toUs, that they had ceased to be pro- fitable as highways of commerce, are now regarded as the instruments of Nature to cement the peaceful H De Jure B. et P., L. II. c. 3. §. 17. 2. 206 RIGHTS OF POSSESSION. relations of mankind, by facilitating their mutual in- tercourse. It was one of the most beneficial arrange- ments of the Congress of Vienna, that the Powers there assembled agreed, that the navigable rivers which traversed or separated their respective States, should be open for commercial purposes to the navi- gation of vessels of aU Nations, from the places where they became navigable to their mouths, subject to an uniform system of police and tolls, to be settled by common accord^^ The Treaty of Paris^", (30 March 1856,) has apphed to the river Danube and its mouths the same rule of law which had been apphed by the Christian Powers assembled at Vienna to the rivers within their respective Territories, and has recorded that this arrangement with the Ottoman Porte forms part of the PubHc Law of Europe. The Right of Empire over any of the great navigable rivers of Europe has thus ceased to confer any exclusive privilege \ipon the Nation which enjoys that Right ; on the contrary, each Riverain State is under a conventional obhga- tion to remove all obstacles to Navigation which may arise in the bed of the river within its Territory, and to maintain the banks and towing paths, and other accessories to the Navigation, ui such a condition as wOl most favour the circulation of the Merchant Ves- sels of all Nations. The Thai- § 1 46. If the oppositc banks of a navigable river MWchan- ^^® ^ *^® posscssiou of two Natious, and neither Na- nei of a tiou cau prove that itself, or the Nation from which Kiver the . ^ ,.,. ., ttit Boundary it may have derived its title, was estabhshed on the one bank prior to the occupation of the other bank by the other Nation, each will have a Right of Em- pire and Dominion over the river as far as the mid- channel or Thahveg. " Pour ce qui est des fleuves et « Martens, N. R. II. p. 428. -(• N. R. General XV. p. 776. of Conter- minous States. EIGHTS OF POSSESSION. 207 lacs frontiferes, dont la rive oppos^e est egalement occupee, leur milieu, y compris les lies que traverse la ligne du milieu, separe ordinairement les territoires. Au Heu de cette ligne on a nouvellement choisi pour frontiere le Thalweg, c'est a dire le chemin variable que prennent les bateliers, quand Us vont aval, ou plutot le milieu de ce chemin". ^^ Grotius and Vattel speak of the middle of the river as the line of de- marcation^^ between two jurisdictions, but modern publicists and statesmen prefer the more accurate and more equitable boundary of the Midchcmnel. If there be more than one channel of a river, the deepest channel is the Midchannel for the purposes of territo- rial demarcation ; and the boundary hne wiU be the line drawn along the surface of the stream corre- sponding to the line of deepest depression of its bed. Thus we find in the Treaty of Argovie, (17 Sept. 1808,) concluded between the Grand Duchy of Baden and the Helvetic Canton of Argovie,'* that the Thcd- iveg, or water-frontier line, is defined to be " the line drawn along the greatest depth of the stream," and as far as bridges are concerned, " the line across the middle of each bridge." The islands on either side of the Midchannel are regarded as appendages to either bank ; -^ and if they have once been taken possession of by the Nation to whose bank they are appendant, 2'! Kliiber, Droit des Gens, the King of Poland and the Em- § 133. press Maria Theresa, all the ^7 Grotius, L. II. c. 3. § 18. islands in the river Vistula, within Vattel, L. c. 22. § 266. the limits of the Convention, with 2^ Martens, N. K. T. I. p. 140. the exception of that in which ^9 Such is the general law, but the town of Casimir is situated, by treaty the midchannel may be were ceded to her Imperial and made the water-boundary, yet all Royal Majesty, whilst half the the islands in the river belong bed of the river was declared to to one Power. Thus by the Con- belong to each Power. Martens, vention of 9 Feb. 1776, between Recueil, T. II. p. 127. 208 RIGHTS OF POSSESSION. a change in the Midchannel of the river will not operate to deprive that Nation of its possession, al- .though the water-frontier line will follow the changes of the Midchannel — " Dans les fleuves navigables, c'est le courant du fleuve qu'on a comnrnn^ment en vue, en convenant de prendre le mUieu pour limite. Cette limite change done si le courant change : ce qui ce- pendant n'influe pas sur la propriete des autres par- ties une fois acquise. Mais dans le cas ou un fleuve changerait totalement le lit, le lit dess^che resterait partage entre les deux nations, comme I'etait le fleuve. Les simples atterrissemens n'alterent pas la ligne qui sert de limite."'"' " A river," writes Grotius, " that separates two Empires is not to be considered barely as water, but as water confined within such and such banks and running in such and such a channel ; therefore the addition, subtraction, or such changes of its particles, as allow the whole to subsist in its ancient form, allows the river to be considered as the same. But if the form of the whole be changed at once, it will be quite another thing ; and conse- quently, if a river is dammed up above, and a passage made to convey the water another way, the river ceases to be. So in case a river should force its way through some unusual passage, and entirely forsake its former channel, it is no longer the river that it was before, but a new river. So, too, if a river should have become dried up, the middle of the channel would remain, as before, the boundary of Empire be- tween two Nations, because the intention of each Na- tion must be presumed to take the river for the natural limit of their lands, but if the river should at any time cease to be, then to possess respectively what 3° Martens, Precis du Droit des Qens^ § 39- RIGHTS OF POSSESSION. 209 they had before : the same rule is to . be observed if the channel should be changed. ^^ §147. When a river is the boundary between Rigiit. of two Nations, whether its channel remains common to the inhabitants of either bank, or whether each Nation possesses half of it, the respective rights of the two Nations are not in any wise changed by alluvion, that is by a gradual addition of soil made by the current of the river to the bank on either side.^^ If therefore it happens that by the natural effect of the current, one of the two banks receives an increase of soU, while the river gradually encroaches on the opposite bank, the river still remains as here- tofore the boundary between the two Nations, and notwithstanding the progressive changes ui its course, each retains over it the same rights as heretofore. So that, if for instance its possession be equally di- vided between the owners of the opposite banks, the midchannel, or Thahveg, although its distance from the respective banks may be no longer the same by reason of the alluvial increase of the one bank and the denudation of the other bank, continues to form the line of demarcation between the two Nations. ^148. A river may belong to one Nation and an- Presonp- other Nation may have an incontestable right to navi- „ ^^ -^f. gate it, in which case the former cannot erect upon ' the river any work which wdl entirely interrupt and render it unfit for navigation. The right to navigate such a river may have been acquired by the Nation, which is not in possession of the river, either by pre- scription founded on the long acquiescence of the other Nation, if it ever had the right to exclude other Nations from the navigation, or by a privilege 3' De Jure B. et P., L. II. c. 3. § 17. 3- Grotius, L. II. c. 3. § 16. Vattel, L. I. § 268, 269. PART I, 1^ vers. 210 RIGHTS OF POSSESSION. granted by a common paramount Sovereign. It may happen, that conterminous Independent States, sepa- rated by a river, have been subject in former times to a common paramount Lord or Sovereign, such for in- stance as the Princes and Free Cities of Germany for- merly recognised in the Roman Emperor of the Ger- mans, who in virtue of his Supremacy could rightfully grant to them by Charter or otherwise the exercise of dominion and jurisdiction over a river within the Empire. Thus a Right of Condominium^^ over the Rhine was granted by the Roman Emperor of the Germans to the Electors of Mayence, Treves, Cologne, and the Elector Palatine, and a Right of Supreme Dominion over the Maine was similarly granted to the Elector of Mayence. In an analogous manner the right of levyuig tolls, which was an Imperial Right, was granted to Riverain States of the Empire, and tolls have been accordingly levied by them upon vessels navigating the rivers which bound or intersect their territory ; at the same time that exceptional pri- vileges of freely navigating such rivers were granted by the same Supreme Authority to one or more other States of the Empire, and have continued to be enjoyed by them since they have become Independent Nations. TheStade § 149- The Stado or Brunshausen ToU, levied by hlusen"^ Hanover on the vessels and goods of Foreign Nations Toll. escending the river Elbe from the Sea is an instance of the Right of Empire exercised under qualifications. The origin of this toll is lost in antiquity. The earliest document, in which it is mentioned, is a charter of the Emperor Conrad II, dated December lo, 1038, which grants the then existing toll levied near the place of Stade to the Archbishops of Bremen, which Grant was confirmed by the succeedmg Emperor Henry III, on 13 May, 1040. His successor the Em- 3J Guiithcr, T. II, 5 14. RIGHTS OF POSSESSION. 211 peror Henry IV, annexed the Comity of Stade with all the tolls and duties then levied to the Arch- bishopric of Bremen. The right thus conveyed ex- isted ia all its generahty until the Emperor Frederic I, on the 7th May, 1189, granted to the citizens of the old Town of Hamburgh, at the instance of Count Adolphus of Schaumburg, the privilege of their ships and goods passing free of the Stade Toll. The ex- emption enjoyed Tuider this privilege was vigorously contested* by the Archbishop, as an infringement upon a vested Right and also upon the property of the Church, but it was ultimately estabhshed, on the 8 Dec. 1268, by the superior might of the Hamburgh Biu-ghers, since which time the right of free naviga- tion has been enjoyed by the Burghers of the old Town of Hamburgh down to the present day. By the peace of Osnabruck, (8 Sept. 1648,) Bremen, which had been erected into a Duchy, was transferred to Sweden, and the Stade Toll was levied by the King of Sweden, as Duke of Bremen, down to 1 7 1 2,whenDenmark wrested from Sweden the Duchies of Bremen and Verden, and ceded them to the Elector of Hanover. At the conclusion of the subsequent peace (9th Nov. 17 19) the Elector of Hanover was formally invested with the two Duchies by the Emperor of Germany, in the same way as the King of Sweden had been invested after the peace of Osnabruck. From this investiture Hanover claims her right to levy the Stade or Brims- hausen Toll. At the time when the Stade Toll was estabhshed, the Elbe was a river of the German Empire, and the levying of river tolls was amongst the rights, which by the law and customs of the Em- pire appertained to the Imperial Crown. It was competent therefore to the Emperor Charles the Great to estabHsh passage-duties upon vessels entering p 2 212 RIGHTS OF POSSESSION. the mouth of the river Elbe, and it is probable that the then frequented harbour of Stade was one of the places selected by that Emperor. It was equally com- petent for a subsequent Emperor to grant the Duchy of Bremen with all the toUs therein levied to a Prince of the Empire, and to sanction the ultimate transfer of the Bremen Fief with all its rights to the Elector of Hanover. Upon the devolution of the Supremacy of the Emperor and the Empire to the immediate vassals of the Imperial Crown, the Elector of Hanover and the Free City of Hamburgh became Independent Sovereign Powers, and they continued to enjoy hence- forth, in such character, the respective rights and privileges in regard to the navigation of the river Elbe, which they had heretofore enjoyed as imme- diate vassals of the Imperial Crown. The King of Hanover continued to levy toll upon all vessels enter- ing the river Elbe from the sea, with the exception of vessels belonging to Burghers of the old Town of Hamburgh. The right of Hanover and the privilege of the old Town of Hamburgh had equally a lawfid origin, and both had been exercised for so many cen- turies, that they had acquired the sanction of long estabhshed custom as against each other and against other Nations. After the Powers assembled at the Congress of Vienna had agreed, that the tolls to be taken on the great navigable rivers of Europe should be settled by a common accord amongst the Riverain Powers, the Commissioners of the Elbe-bordering States assem- bled at Dresden, (3 June, 181-9,) for ^^e pm-pose of settling a scheme of Elbe-toUs. On this occasion Hanover appears to have contended, that the Stade ToU was a Sea-toll, as distinguished from a River- toll ; and consequently was not within the scope of RIGHTS OF POSSESSION. 213 the Treaty-Engagements of Vienna. A subsequent and more careful investigation, has induced Hanover to admit that the Stade Toll is a River-toU, and it has been accordingly regulated by the Elbe-bordering States under the Convention of Dresden'^ (30 Au- gust, 1843.) This toll accordingly, which was origi- nally a territorial toU levied imder the authority of the Roman Emperor of the Germans upon all vessels coming from the Sea into a river of the Germanic Empire, has been regulated by a Convention in pur- suance of the Treaty-Engagements of Vienna : it has thus been sanctioned by the Conventional Law of Europe. The Stade ToU had beyond all doubt a rightful origin, and its rightful origin has secured its recognition ; unlike the Gliickstadt toU, which the King of Denmark, as Duke of Holstein, attempted to levy in the Seventeenth Century upon aU vessels passing by the Port of Gliickstadt, but which the Enghsh and Dutch nations '^ and above all the citi- zens of Hamburgh successfully resisted. 33 Martens, N, R. General, V. Corp. Jur. Gent. I. p. 356. Lord p. 530. Molesworth's Account of Den- 34 Treaty of 1645. Schmauss, mark, anno 1692. CHAPTER IX. EIGHT OF JURISDICTION. Incidents of the Eight of Empire — National Sovereignty pro- perly Territorial — The Jus Civile of a State operative only within its Territory — The Comity of Nations sometimes gives effect to Foreign Laws — Personal, Real, and Mixed Statutes — Growth of Private International Jurisprudence — Exceptional position of Euro- peans whilst resident amongst Asiatic Nations — Personal Actions of Foreigners — Extra-territoriality of certain Foreign Persons and Things — Merchant Vessels subject to the Territorial Law — Right of Emigration — Domicil the criterion of National Character — Juris- diction and Remedies — Comity of Nations in regard to Personal Property, — Domicil of Origin and Domicil of Choice. Incidents § 1 50. The Empire of a Nation within its OAvn ter- Kight of ritory is of Natural Right exclusive and absolute : it Empire, -g gusceptible of no limitation not imposed by the Nation itself, for any restriction imposed upon its exercise, deriving force from an external authority, wordd imply an impairment of a Nation's Inde- pendence to the extent of that restriction, and an investment of Sovereignty to the same extent in that Power which had imposed such restriction. AU exceptions, therefore, to the free exercise of the Right of Empire by a Nation within its own territory must be derived from the consent of the Nation itself. The Right of Civil and Criminal Legislation in respect of aU property and persons within the terri- tory of a Nation is an incident of the Right of Empire. It follows, therefore, that the Laws of every Nation bind of Natural Right all property situate within its territory, as well as all persons re- sident therein, whether they be natives or strangers, and that they control and regidate all the acts done, or contracts entered into within its limits. RIGHT OF JURISDICTION. 215 Every Nation has accordingly an absolute right to order the conditions xmder which Real or Personal Property situate within its territory may be held or transferred, as well as to determine the capacity of aU persons resident therein to enter into Contracts, as weU as the formalities requisite to give legal effect to such Contracts, and the rights and obligations resulting thereupon ; and finally to prescribe the con- ditions under which actions at law may be brought before its tribunals, and the remedies which may be administered in its Courts^. § 151. A Nation cannot by its Laws directly bind National property which is beyond the hmits of its terri- reignty tory, nor directly control persons who are not resi- ^'"°^^;J'q^j^i dent therein. This is a necessary consequence of the proposition advanced in the preceding section ; for it would be inconsistent with the absolute character of Territorial Empire, if the Laws of a Nation could biad persons or property within the territory of an- other Nation, and so control the operation of the Laws of the latter Nation within its own territory. Rodenburg has accordingly observed, that no Sove- reign Power can of Right set Law beyond the limits of its territory. "Constat igitur extra territorium legem dicere nemini hcere ; idque si fecerit quis, im- pune ei non pareri, quippe ubi cesset Statutorum fun- damentum, cessant robur et jiu-isdictio^." Boullenois lays down a similar rule ; " Of strict Right, all the Laws set by a Sovereign have only force and author- ity throughout his dominions^" Vattel concurs in this view, when he says, " The Empire united to the > Boullenois, Traite des Sta- - Eodenburg, De Statutis, Tit. tuts, T. I. p. 2, 3, 4. Story, Con- I. c. 3. § i. flict of Laws, §18,19. Fselix, 3 Boullenois, Traite. des Sta- Droit International Prive, § 9. tuts, Principes G^neraux, VI. 216 EIGHT OP JURISDICTION. domain establishes the jurisdiction of the Nation within its territory. It is its province, or that of its Sovereign, to exercise Justice in all the places under its Empire; to take cognisance of the crimes that are • committed, and the differences that arise in the country*." No Law accordingly is operative, ^r(9pr^o vigore, beyond the limits of the territory of the State which has set it^. " There is no doubt," writes Chan- cellor Kent*", " of the truth of the general proposition, that the Laws of a country have no binding force beyond its own territorial limits, and their authority is admitted in other States, not ex propria vigore, but ex comitate, or in the language of Huber, " qua- tenus sine prsejudicio indulgentium fieri potest," &c. Another eminent American authority. Chief Justice Parker, has recognised a similar doctrine in an elabo- rate Judgment, in the course of which he observes, that " the laws of a State cannot by any inherent authority be entitled to respect extra-territorially, or beyond the jurisdiction of the States which enact them ; this is the necessary result of the Inde- pendence of distinct Sovereignties'"." Jus Civile $152. A difference of kind exists between the of a State . , i . i • i -kt • i • i • t operative Authonty which a Nation claims to bmd its own it" S- ™ natural born and naturahsed subjects by its laws, in tory. whatever country they may be, and the Right which a Nation possesses to control by its Laws all persons and property within its territory. The former au- thority is founded upon an implied or express Com- pact amongst the members of the Political Society which constitutes the Nation, and which Compact 4 Droit des Gens, B. II. § 84. 7 Blanchard v. Eussell, 13 5 Martens, Precis du Droit des Massachusetts Kepts. p. 4. of. Gens, § 86. Bank of Augusta v. Earle, 13 ^ Kent's Commentaries, Tom. Peter's Kepts. p. 584. IJ- §457- EIGHT OF JUEISDICTION. 217 has given rise to personal obligations on the part of the subject members towards the Sovereign Power ; by virtue of which the Sovereign Power of a Nation may enforce its Laws against the subject members, as soon as they have returned within the limits over which its Right of Empire extends. The latter Right is incidental to the Right of Empire ; which is a Paramount Right within the limits of a Nation's territory. When, therefore, it is said that the Sovereign Power of a Nation may bind by its Laws its natural bom or naturahsed members everywhere, it must be understood that this attribute of personal Sovereignty is subordinate to the attri- butes of territorial Sovereignty ; and that a Nation cannot enforce its Laws against its subjects whilst they are within the territory of another Nation. The exercise of personal Sovereignty on the part of a Nation over its own natural bom and naturahsed subjects, in respect of matters happening within the territory of another Nation, is not in point of Natural Right altogether clear upon any acknowledged prin- ciple ; nor "is the authority of a Nation to bind them whilst they are within the territory of another Nation by personal Laws recognised by other Nations. Re- sidence is, in fact, the foundation of Jurisdiction under the Law of Nations. To be resident within the territory of a Nation is to be subject to its Juris- diction ; but Nations, from considerations of mutual Comity, do not apply the same Laws in aU matters to persons who are only temporarily resident, as it apphes to persons who are permanently resident within its territory. The discretion however of a Nation as to the particular Law which shall be ad- ministered in its Courts is absolute, and it may de- cline to allow its Courts to give any effect to Foreign 218 RIGHT OP JURISDICTION. Law : on the other hand, if it allows its Corn-ts to administer Foreign Law in disputes between foreign- ers, or otherwise, it adopts tacitly the Foreign Law as its own for the settlement of such disputes. The Co- ^153. The Laws of a Nation can only have effect Nations or obligation within the territory of another Nation giTOs effect ^J "^irtuc of the express or tacit consent of the latter, to Foreign ^ Nation may prolubit the operation of all Foreign Laws, and refuse to recognise any rights growing out of them within its territory. On the other hand, it may prohibit some Foreign Laws, and give operation to others, either absolutely, or sub modo. If the Statute or Common Law of the Nation speaks clearly in such matters, it must be obeyed by all within the local limits of its authority. When both are silent, European Courts of Justice under the Comity of Nations presume the tacit adoption of the Laws of a Foreign Nation by their own Grovernment, in mat- ters which regard Foreign Interests, unless they are repugnant to its own policy, or prejudicial to its own interests. No Nation can be justly reqiiired to give up its own fundamental policy and institutions, in favour of those of another Nation ; much less can any Nation be required to sacrifice its own interests in favour of another Nation, or to enforce doctrines which in a moral or poHtical view are incompatible with its own safety or happiness, or with its con- scientious regard to justice and duty. It is therefore essentially a question of Comity between Nations, to what extent effect shall be given to Foreign Law, and all questions of Coviity depend upon a variety of circumstances which cannot be reduced to any cer- tain rule. Huberus' has propounded upon this ques- tion three maxims, which Mr. Justice Story, Mr. S De Conflictu Legum, L. I. Tit. III. § 2. RIGHT OF JURISDICTION. 219 WJieaton, and M. Faelix equally approve, as being conformable to the practice of Nations. The first is, that the Laws of every Empire have force only within the limits of its own Government, and bind all who are subjects thereof; but not beyond those limits. The second is, that all persons who are found within the limits of a Government, whether their residence is permanent or temporary, are to be deemed subjects thereof. The third is, that the rulers of every Em- pire from Comity admit that the Laws of every people in force within its own territorial limits ought to have the same force and effect everywhere, so far as they do not prejudice the power or rights of other Governments, or of their citizens. " From this," Huberus adds, " it appears that this matter is to be decided not simply by the Civil Law of a Nation, but by the reciprocal convenience and the tacit consent of different Nations ; for siuce the laws of one people cannot have any direct operation amongst another people, so nothing could be more prejudicial to the commerce and general intercourse of Nations, than that what is legally valid in one place should become without effect by reason of the diversity of the Law in another place*. Certain Jurists have contended that the term Comity is not sufficiently expressive of the obUgation of Nations to give effect to Foreign Laws, when they are not prejudicial to their own rights and interests, and have suggested that the doctrine rests on a deeper foundation ; and that it is not so much a matter of Comity or Courtesy as a matter of paramount Moral Duty. "Now if it be assumed," writes Mr. Justice Story, "that such a Moral Duty exists, it is clearly 9 Bynkershoek, De Foro Legatorum, c. 2. Martens, Precis, § 84. Kliiber, Droit des Gens, § 54. 220 RIGHT OF JURISDICTION. one of imperfect obligation, like that of beneficence, humanity, or charity. Every Nation must be the final judge for itself, not only of the nature and ex- tent of the duty, but of the occasions on which its exercise may be justly demanded ; and certainly, there can be no pretence to say that any Foreign Nation has a right to require the fuU recognition and execution of its own Laws in other territories, if those Laws are deemed oppressive or injurious to the rights or interests of the inhabitants of the latter, or if their Moral character is questionable, or their pro- visions are impolitic or unjust^". Even in other cases it is difiicult to perceive a clear foundation in Morals, or in Natural Law, for declaring that any Nation has a right (all others being equal in Sovereignty) to insist that its own Positive Laws should be of supe- rior obhgation in a Foreign Reahn to the Domestic Laws of the latter, which may be of an equally posi- tive character. What intrinsic right has one Nation to declare that no Contract shall be binding, which is made by any of its subjects in a Foreign Country, unless they are twenty-five years of age ; any more than another Nation, where the Contract is made, has a right to declare, that such Contract shall be bind- ing, if made by any person of twenty-one years of age. One would suppose that if there be anything within the scope of National Sovereignty, it is the right of a Nation to fix what shall be the rule to govern Contracts made within its own territory'^." Personal, § 154- -A- distinction has accordingly been made by Mixedt" ^^^ Civilians between Personal Statutes, Real Sta- statutes. tutes, and Mixed Statutes. Personal Statutes, ac- i° Story's Conflict of Laws, Martin's Louisiana Repts. 569 — §33- . . 598. " Saul V. his Creditors, 17 RIGHT OF JURISDICTION, 221 cording to this classification, are those portions of the Civil Law of a Nation which have persons principally for their object, and treat only of property as an accessory ; such are those which regard birth, legi- timacy, freedom, the right of instituting suits, majo- rity as to age, incapacity to contract or to make a will or to sue in proper person, &c. Real Statutes are those which have property principally for their object, and which do not speak of persons except in subordination to property ; such as those Laws which concern the disposition which may be made of pro- perty either by deed or by will. Mixed Statutes are those which concern at once persons and pro- perty. This threefold classification has been con- sidered by Merlin ^^ to be unnecessary, as every Sta- tute ought to receive its denomination according to its principal object ; and according as that object is real or personal, so ought the quality of the Statute to be determined. But the distribution of Statutes into three classes is usuaUy adopted, as stated by Rodenburg^^ ; because there is a corresponding dif- ference of fact in the scope of Statutes, for a Statute either disposes respecting persons in the abstract, without any regard to things ; as, for instance, at what age a person shall be a free agent (Sui juris), and cease to be subject to the parental authority, (patria potestas,) or it disposes of things without regard to persons ; as, for instance, whether property of a certain quahty can pass by will, or must be transmitted by deed, and in either case, with what formahties ; or it enables or forbids certain persons to do certain things, as it forbids a father to alienate " Merlin, Piepertoire du Droit. '3 De Statutorum Diversitate, Art. Stafut. c. 2. p. 4. 222 EIGHT OP JURISDICTION. his patrimonial estates, and permits him to dispose of property acquired diiring his lifetime^*. Growth of § 155. With regard to Personal Statutes, they are in"Ima- ^eld to be of general obHgation and force everywhere, tionai Ju- ji I Statutes, on the other hand, are held to have no dence. extra-territorial force or obHgation. With regard to Mixed Statutes, the extent and degree of their ope- ration is one of the most intricate questions of Inter- national Jurisprudence. Thus much however may be said, that their operation is not a question of Right, but of Comity ; and that the Comity of Nations extends thus far only. If, for instance, a Mixed Sta- tute involves a question of Contract, and it is sought to enforce the Contract within the territory of an Independent Power other than that Power within whose territory the Contract has been made, it is necessary in the first place, that the subject matter of the Contract should be such as does not contravene the Law or pohcy of the Power, before whose tri- bunals it is sought to be enforced. This fact being estabhshed as a preliminary, the tribtmals of the latter Power wiU take into consideration the lex loci contractus, to determine the constat of the obHgation, but they do not administer the Law of the place, where the Contract was entered into, in awarding the remedy. They award only that remedy which the Lex Fori expressly ordains, or a remedy which is in accordance with the analogy of the Lex Fori. The administration of Foreign Law by Coiu'ts of Justice under the Comity of Nations has given rise to an extensive department of Juridical Science, '4 The distribution of Statutes Reels et Pei'sonels, L. I. c. 2. into three classes is adopted by obs. 2. and by Pothier, Coutumes Boullenois, Traits des Statuts d'Orleans, c. i. § i. Art. 6, 7, 8. RIGHT OF JUElSDICTIOIir. 223 whicli has been termed Private International Juris- prudence. This branch of Juridical Science, which is concerned more especially with the conflict of Laws arising out of the relations of civil life, which exist between the citizens of different States, proceeds upon a wise and hberal regard to the mutual con- venience and mutual necessities of mankind. The real difficulty is to ascertain what principles in point of pubhc convenience ought to regulate the conduct of Nations in these matters in regard to one another. The necessity of the general welfare has sanctioned certain exceptions to the rule, Statuta suo clau- duntur territorio, nee ultra territorium disponimt ; and the Civil legislation of one Nation may through the Comity of another Nation have effect given to it beyond the limits of its territory.. But there is no such Comity in regard to the Criminal legislation of a Nation, and the Criminal Law of one Nation has only effect given to it within the territory of another Nation by virtue of express Conventions. § 156. Instances of such Conventions are found in Excep- the Capitulations between the Christian Powers oftJon^'oS-" Europe and the Ottoman Porte ; whereby maffis- '•"peaf 9 J- _ _ ^^ ^ ./ o -wlnlsT, re- trates nominated by various Christian Powers are sident respectively empowered to administer the Law of Asiatics. their own Nation amongst its subjects, who may be resident within the Ottoman territory. Treaties to a similar effect have been concluded by the Emperor of China with Great Britain ^^, (22 July, 1843,) with the United States of North America ^^ (3 July, 1844,) with France^'', (24 Oct. 1844,) and with Russia'^, (13 June, 1858,) and by the Emperor of Japan with '5 Martens, N. R. G&. V. p. '7 Id. VII. p. 443. 434. 18 Id. XVI. pt. 11. p. 1 28. >« Id. VII. p. 134. 224 RIGHT OF JURISDICTION. Great Britain", (26 August, 1858,) and with France'", (9 Oct. 1858.) Such, treaties however are in the highest degree exceptional. But the Law of Euro- pean Nations itself has always been exceptional in its application to Mahommedan and other Non- Christian Nations. Amongst Christian States there are no such fundamental differences in their respect- ive standards of MoraHty, as to render the Criminal Law of one State totaUj inappHcable to the subjects of another State ; but amongst the Mahommedan and Buddhist Nations there is so essential a diversity in the sanctions, which rehgion and morahty attach to human conduct, as contrasted with those which pre- vail throughout Christendom, that from the oldest time an immiscible character between Europeans and Orientals has been maintained. Europeans are not admitted into the general body and mass of the society of Asiatic Nations ^' ; they continue strangers and sojourners in the land, if they reside amongst them; they form de facto an extra-terintorial commu- nity, which does not acq\iire a National character by permanent residence amongst them. In former times when it was the custom of the Christian Powers of Europe, to establish Factories in the cities of the Levant, Europeans permanently trading under the shelter and protection of those establishments were held to take the National character of the Associa- tion, under which they lived and carried on their commerce. The modern system of exercising treaty- jurisdiction leads to the presumption, that the sub- jects of the Powers which are parties to those treaties, being exempt from the territorial Sovereignty of the 19 Martens, N. R. G^n. XVI. ^' The Indian Chief, 5 Eo- pt. II. p. 430. binson's Rep., p. 39. io Ibid. p. 439. RIGHT OF JUKISDICTION. 225 State wherein they permanently reside, will retain, notwithstanding such residence, the National cha- racter which attaches to them by their origin. § 157. In Great Britain, in the United States of Personal North America, in the Germanic States, in Holland, Kore^ners. foreigners equally with natives are allowed to bring personal actions against foreigners before the tri- bunals of the country, where they may happen to reside. They cannot bring real or possessory actions, as those are within the exclusive competency of the Coiirts of the loci rei sitCB. But inasmuch as by the Law of Nations the jurisdiction of a Nation extends over all persons and p>'>"operty within its territory, with the exception of the persons and property of Sovereign Princes and their Representatives, it would seem clear upon general principles, that it is a matter of civil policy to decide, in what manner that jurisdic- tion should be exercised as between foreigners. In some countries, such as Spain and Portugal, there have been special tribunals constituted under treaty- engagements and charged with the jurisdiction over questions in which foreigners are concerned. The Judges of these tribunals are termed Judges-Conser- vators. In Portugal there was a remarkable privi- lege enjoyed by British subjects. The Treaty of 1654 concluded between the Republic of England and the Kingdom of Portugal provided for the ap- pointment of a Judge-Conservator of the British Na- tion, whose province it was to decide aU actions between British Subjects not having a Portuguese Do- micil by the Law of Nations, and all actions between British and Portuguese subjects. There was an ana- logous Treaty of a later date between France and Portiigal in regard to French Subjects. But in case of a suit of a French Subject against a British Subject, PART I. Q 226 RIGHT OF JURISDICTION. the privilege granted to the British Nation being the most ancient, the Judge-Conservator of the Bri- tish Nation was held to be the Competent Judge. ^^ The institution of a special judge to administer jus- tice between resident foreigners not domiciled in Rome, and between resident foreigners and Roman Citizens, was a peculiar feature of the early Roman Jurispru- dence. The functions of the Prcetor Peregrinus are described as being those of a Judge qui inter cives et peregrinos jus dicebat, and the rules of law which he administered were classed by the Roman Jurists under the head of Jus Ge7itium, or the law which Natural Reason teaches aU mankind, and which is observed equally by all Nations, and under which all kinds of personal contracts are comprised. ^^ France occupies a somewhat exceptional position as contrasted with the States above mentioned. Two foreigners who have entered into a contract in a foreign country are not al- lowed to sue each other upon the contract before a French Tribunal, unless one or other of the foreigners has acquired a French domicil before the contract was entered into.^ The same rule prevails in Belgium and in the Kingdom of the Two Sicilies, where the Code Napoleon has been introduced. The principle of jurisprudence, upon which this practice is based, is comprised in the maxim, ^cior sequitur forum Bei, according to which every defendant is entitled to be sued before his natural judges. The Code Napoleon mter- prets this maxim in such a case as referring to the ^- Gazette des Tribuiiaux of ducti sunt, ut emptio, venditio, 16 and 17 Oct. 1843, cited by locatio, conductio, societas, depo- Fcelix, Traite du Droit Inter- situm, mutuum, et alii innumera- national, T. I. § 148. biles. Just. Inst. L. I. Tit. II. § 2. 23 Ex hoc jure gentium ct =+ Code de Commerce, Art. onmcs pnone contriictus intro- 631. RIGHT OF JURISDICTION. 227 Tribunals of the domicil of the Defendant. VatteP^ applies this maxim in a different manner ; he holds that, " disputes that may arise between foreigners or between a foreigner and a citizen are to be deter- mined by the Judge of the place, and according to the laws of the place. And as the dispute properly arises from the refusal of the defendant, who maintains that he is not bound to perform what is required of him, it follows from the same principle, that every de- fendant ought to be prosecuted before his own Judge, who alone has a right to condemn him and compel him to the performance. The Swiss have wisely made this rule one of the articles of their aUiance, in order to prevent the quarrels that might arise from the abuses that were formerly too frequent in relation to this subject. The defendant's Judge is the judge of the place where the defendant has his domicil, or the Judge of the place where the defendant happens to be when any sudden difficulty arises, provided it does not relate to an estate in land, or to a right an- nexed to such an estate. In this latter case as property of that kind is to be held according to the laws of the country where it is situated, and as the right of grant- ing possession belongs to the ruler of that country, differences relating to such property cannot be decided anywhere except in the State on which it depends." M. Foelix, in commenting on the practice of the French Tribunals, considers that the refusal of the French Tribunals to take cognisance of personal actions, in which both the Plaintiff and Defendant are foreigners temporarily resident in France, is a violation of the Law of Nations as received in Europe, and exposes French Subjects to a reciprocal disability before the tribunals of another country, wherein they may be 25 Droit ties Gens, L. II. § 103. Q 2 228 RIGHT OF JUEISDICTION. temporarily resident, seeing that the condition of reciprocity is presumed, whenever the Comity of Na- tions is invoked. Extra-Tsr- §158. The •pTiYilege ot Uxtvo- Territoriality, OT im- certain Fo- munity from the Civil Law of the Territory, is by the so!fa"anr' Practice of Nations accorded to all Sovereign Princes Things. and their attendants, who may be temporarily within the territory of an Independent Power. The same pri- vilege is accorded to the Representatives of Foreign Sovereigns, who may be permanently resident under the title of Ambassadors or Envoys at the Court of an Independent Power. By the established practice of Nations the House of Residence of an Ambassador or Envoy is held to be subject to the civil and criminal ju- risdiction of the Sovereign whom he represents, to the exckision of the jurisdiction of the Sovereign to whom he is accredited, and within whose territory he resides. AH persons attached to the person of the Ambassador and aU his moveable effects partake in this immunity. In a similar manner, if an Independent Power permit the armed forces of another Nation to pass through its territory, this permission impUes a waiver on its part of all jurisdiction over the troops during their passage through its territory, and a license to the commander to maintaia that disciphne, and to inflict those punish- ments, which the government of his troops may require. On the other hand, if an armed force should enter by land the territory of an Independent Power without its permission, such Power is entitled to exercise its absolute territorial jurisdiction over them, and if it thinks fit, to disarm them. The rule, however, which applies in relation to an armed force upon land, does not apply equally to an armed force upon the sea, as by the usage of Nations ships of war may freely enter the ports of a friendly Power without express permission, unless there be an especial proliibition RIGHT OF JURISDICTION. 229 against vessels of war entering such ports. It is competent for every Nation for reasons of State Policy to close all its ports, or certain only of its ports, against the vessels of war of all Nations or against the vessels of war of a particular Nation, but in such cases notice is usually given of such determination. If there be no such prohibition, the ports of a Friendly Nation are considered to be open to the pubhc ships of ah. Powers, with which it is at peace, for purposes of hospitahty, and they are supposed to enter such ports under an imphed license from the Sovereign Power of the place. This impHed licence in the case of a pub- hc ship is by practice construed to carry with it a total exemption from the law of the territory. A pubhc vessel of war represents the Sovereign Power of the Nation, under whose commission and flag it sails. If it leaves the High Seas, the common high- way of Nations, and enters within the maritime terri- tory of a Friendly State, it is entitled to the same privileges which would be extended to the person of the Sovereign. ^* A ship of war has been termed an extension of the territory of the Nation to which it belongs, not only when it is on the wide ocean, but when it is in a foreign port. In this respect a ship of war resembles an army marching by consent through a neutral territory. Neither ships of war nor army so hcensed fall under the jurisdiction of a Foreign State. ^' § 159. Private vessels, on the other hand, enter the Merchant . f* p • "\T i_' J? j-1 p j_ 1 Vessels are ports 01 a foreign JNation lor the purposes 01 trade, subject to under the impHed protection of the Sovereign of the f"^. 'T'l''"" JT^ -T ^ o tonal l/aw. place, but siibject at the same time to the Law of the ^^ Lord Chief- Justice Mar- Cranch's American Eepts. p. 1 1 6. shall's Judgment in The Schooner ^7 Dr. Channing on the Duty Exchange v. M^Faddon, 7 of Free States. 230 RIGHT OF JURISDICTIOX. Territory. So complete is the authority of the lex loci over all persons and property on board of private vessels, that if a vessel under the British Mercantile Flag were to enter the port of Charleston, having free negro sailors amongst her crew, the mercantile flag will not protect those sailors from the operation of the territorial Law of the state of South Carolina, which forbids a free negro to be at large within the limits of that State. It has thus frequently happened that negroes, or persons of colour, though free sub- jects of her Britannic Majesty, and duly entered on the muster roll of the Crew of a British merchant vessel, have, on such vessel entering the port of Charleston, been taken out of her by the officers of the Port under the authority of the local law, and have been detained in custody until the vessel has cleared outwards, when they have been again placed on board of the ship with permission to leave the country. On the other hand, if a merchant ship under the flag of the United States, or tmder the Palmetto flag of South Carolina, were to enter a British Port with one or more negro slaves on board, her mer- cantile flag would not avail to exclude the jurisdiction of the British Courts, if their territorial authority should be iavoked to vindicate the personal Hberty of an human being who is within British Terri- tory^. It follows, that the crew of a merchant vessel, which is within the port of a foreign Nation, are amenable to the territorial Law of that Nation in respect of aU offences committed -nnt hin the port, whether those offences be committed on board the merchant vessel or on shore. But if an offence be 28 It was decided in the me- Court of King's Bencli, June 32, morable case of Somerset the 1772, that a State of Slavery Black, by a Judgment of the cannot exist in Great Britain. RIGHT OP JURISDICTION. 231 committed on board a merchant vessel whilst she is on the High Seas, such an offence is only cognisable by the courts of the country to which she belongs ; no one on board of her may be impleaded for such offence before the courts of a foreign country, although the vessel may enter its ports immediately after the offence has been committed. The crime of piracy, of course, is an exception to this rule, being an offence luider the Law of Nations, which may be punished even on the High Seas by the first comer, and which crime every sovereign Power has a conctirrent juris- diction to suppress. ^ i6o. Considered from an international point of Right of view, the jurisdiction of a Nation must be founded ti™.^™ either upon the person or the property being within its territory. Considered from a civil point of view, jurisdiction may be founded upon natural as well as local allegiance ; in other words every independent State claims to make laws perpetually binding upon its natural bom subjects wherever they may be. But natural allegiance, or the obhgation of perpetual obe- dience to the government of the country, wherein a man may happen to have been born, which he cannot forfeit, or cancel, or vary by any change of time, or place, or circinnstance, is the creature of Civil Law, and finds no countenance in the Law of Nations, as it is in direct conflict with the incontestable rule of that Law ; " Extra territorium jus dicenti impune non paretur^^." Vattel, accordingly, holds that a citizen has an ab- solute right to renounce his country and abandon it entirely — a right founded on reasons derived from the very nature of political society. For instance, if the citizen cannot procure sustenance in his own country, 29 Dig. L. II. Tit. I. § 20. Pothier, Pandect, L. I. T. i. n. 7. 232 RIGHT OP JURISDICTION. it is undoubtedly lawful for him to seek it elsewhere. If the society of which he is a member fails to dis- charge its obligations towards a citizen, he may with- draw himself. If the major part of a Nation, or the Sovereign who represents it, attempts to enact laws relative to matters in which the Social Compact cannot obUge every citizen to submission, as for instance in the affairs of Religion, those who are averse to such laws have a right to quit the Society and settle them- selves elsewhere. Citizens, who under such circvmi- stances abandon their native country sine animo re- vertendi, and settle themselves elsewhere, are called Emigravts, and the Law of Nations recognises in such persons a capacity to acquire the National cha- racter of the country of their adoption. Domioii, § i6i. According to the Law of Nations, when the rion of Na- National character of a person is to be ascertained, ractel-.''^'* the first question is, in what territory does he reside, and is he resident in that territory for temporary purposes, or permanently. If he resides in a given territory permanently, he is regarded as adhering to the Nation to which the territory belongs, and to be a member of the political body settled therein. If he is only resident in a given territory for temporary piurposes, he is regarded as a stranger thereto, and a further question must then be asked, in what country is his principal establishment, and where, when he has returned, does he consider himself to be at home ^^. The country, which satisfies the conditions impHed in this further question, is designated in the language of 30 In eo loco singulos habere avocet ; unde cum profectus est, domicilium non ambigitur, ubi peregrinari videtur, quo si rediit, quis larem, rerumque et fortuna- peregi-inari jam destitit. — Codex, rum suarum summam constituit, L. X. Tit. XXXIX. § 7. unde non sit discessurus si nihil EIGHT OP JURISDICTION. 233 public Law the Domicil of the individual, which VatteP' defines as a fixed residence in any place with the intention of always remaining there. Wohf has, in a similar manner, defined domicilium to be "ha- bitatio aliquo in loco constituta, perpetuo ibidem manendi animo^l" The word Domicil is originally a term of Roman Municipal Law, the Romans using the expression to denote the place in which a Roman citizen had to discharge his municipal obligations, in distinction from the place in which he was born ; and in this sense it is employed by Grotius^^, as il- lustrating the privilege which Roman citizens enjoyed under the later Imperial Constitutions, of transferring their permanent abode from one Municipium to an- other. The distinction between the civis and the incola was founded thereupon. " Gives quidem origo, manumissio, aUectio, vel adoptio, incolas vero domi- cUium facit^*," and jurisdiction was made in miany cases to depend upon the place of residence of the individual, as distinguished from the place of his birth. The question of DomicO. lost its importance after the conquest of the Roman Empire by the Barbarians, as for a long time a system of personal laws prevailed amongst the communities of mixed races, the Lombard living under the Lombardic, and the Roman under the Roman Law''' ; but after the Peace of Westphalia, from which event we may date the commencement of normal intercourse between European Nations'", the subject of Domicil came to 31 Droit des Gens, L. I. § 217. mischen Eechts in Mittelalter, 3^ Jus Gentium, § 137. c. III. § 30. — Story's Conflict of 33 De Jure Belli et Pacis, L. II. Laws, § 2. c. V. § 24. l(> The establishment of per- 34 Codex, L. X. Tit. 29. § 7. manent Embassies at Foreign 35 Savigny, Geschichte des Kb- Courts dates from this period. 234 EIGHT OP JURISDICTION. be again discussed by Jurists under new circum- stances, namely, with reference to the residence of in- dividuals in different Territories, and not as in the Roman system of Law, with reference to their resi- dence in different places within the same Territory, namely, the Roman Empire. Dr. PhiUimore, in his Treatise on Domicil^', has observed that " as the sub- jects of one kingdom began to migrate into and reside in other countries, the various questions, arising from a conflict between the municipal regulations of the original and the adopted country, gave importance to the Law of Domicil, and rendered the maintaining an uniformity of rules respecting it in Christendom a matter of great consequence. Lord Campbell, to the same effect, in a recent judgment of the House of Lords, overruling the Scotch Courts of Exchequer, has taken occasion to remark, that "the doctrine of Domicil has sprung up in Great Britain very recently, and that neither the Legislature nor the Judges thought much of it, but it is a very convenient doc- trine, it is now well understood, and it solves the dif- ficulty with which this case was surrounded ^^." Dr. PhiUimore has further remarked most aptly, that the circumstance which has most contributed to give im- portance to the Law of Domicil, has been the univer- sally increasing value of personal property. jurisdic- § 1 6a. Jurists have laid it down that there are, pro- Kemedies. P^rly Speaking, three places of jurisdiction ; first, the domicil of the defendant, commonly called forum domicilii : " Nam ubi domicilium reus habet, vel tem- pore contractus habuit, Hcet hoc postea transtulerit, ibi tantum eum conveniri oportet^" ;" secondly, the 37 The Law of Domicil, § 8. (House of Lords) Keports, p. i. 38 Thompson v. Advocate Ge- 39 Codex, Lib. III. Tit. XIII. neral, 12 Clark and Finelly's § 2. RIGHT OF JURISDICTION. 235 place where the thing in controversy is situated, com- monly called forum rei sitce : " Sed et in locis, in qui- bus res, propter quas contenditur, constitutse sunt, jubemus in rem actionem adversus possidentem mo- veri*" ;" and thirdly, the place where the contract is made or other acts done, commonly called forum rei gestce or forum contractus*^ : " Illud secundum est, eum, qui ita fuit obhgatus, ut in Itaha solveret, si in provincia habuit domicUium, utrobique posse conve- niri, et hie et ibi*l" These distinctions constitute the basis of the reasoning of most Jurists in discussing the competency of tribunals to hold jurisdiction of causes and the proper operation of Judgments and Decrees (rei judicatse) ; as for instance, whether they are final and preclude any further proceeding on the same cause of action before the Tribunals of another country. Some coimtries, such as France, repudiate all obligation on the part of their Tribunals to ad- minister the law of the forum, contractOs. Other countries, such as Great Britain and the United States of America, administer the law of the forum con- tractils in this manner : " What the nature of the obhgation is must be determined by the laws of the country where it was entered into, and then this country will apply its own law to enforce it^." " We aU agree that in construing contracts we must be governed by the laws of the country where they are made, for all contracts have reference to such laws. But when we come to remedies, it is another thing. They must be pursued by the means which the law points out, where the parties reside. The laws of the 40 Codex, Lib. III. Tit. XIX. 4- Dig. L. V. Tit. I. s. 19. § 4. § 3 . 43 Lord Chief Justice Eyre in 4' Hubenis, Lib. V. Tit. I. Melan v. Fitzjames, i Bos. and Boullenois, Obs § 25. Puller, 138. 236 EIGHT OP JURISDICTION. country where the contract was made can only have reference to the nature of the contract ; not to the mode of enforcing it. Whoever comes voluntarily into a country subjects himself to the laws of that country, and therein to all remedies directed by those laws on his particiilar engagements**." It is imma- terial whether the remedies given by the law of a foreign country, to the tribunals of which country the complaint is made, exceed or fall short of those given by the law of the place of contract ; in either case the parties to a suit must accept the remedy of the Forum, to which they have appealed. Lord Tenterden in a more recent case has said, " A person suing in this country must take the law as he finds it. He cannot by virtue of any regulation in his own country enjoy greater advantages than other suitors here, and he ought not therefore to be deprived of any superior advantage which the law of this cotmtry may confer. He is to have the same rights which all the subjects of this country are entitled to^." A similar doctrine has been solemnly promulgated in the House of Lords on a stUl more recent occasion''*. Comity of §163. The rightful exercise of jurisdiction on the regarTto" part of a Natiou depends upon one or other of these personal conditions, that the person or the property is vdthin property. ' ^ ^ ^ r r J the territory of the Nation. In either of these cases a Nation is capable of enforcing the judgment of its tribiuials in ivvitos. If the persons are within its territory, the Sovereign Power of the Nation can compel them to appear before its tribunals, and can enforce its decisions in personam. If the property is vothin its territory, the Sovereign Power of the 44 Mr. Justice Heath in Ogclen and Adolph. 284 V. Saunders, 12 Wheaton, p. 213. 4'' Don. v. Lipmann, 5 Clark 45 De laVegav, Viana, i Barn, and Finelly, i, 13, 14. RIGHT OF JURISDICTION. 237 Nation has control over it, and can enforce its judg- ments in rem. But the exercise of the strict Right of Nations has been tempered by the Comity of Nations with respect to persons, and with respect to personal as distinguished from real property, and in practice the Civil Law of a Nation has exclusive operation given to it only with respect to persons domiciled within its territory, and with respect to real property which is there situate. The maxim mo- hilia sequiintur person-am is interpreted to signify that moveables are, in law, attached to the person of the owner, although they may in fact be apart from it. The incidents of Moveable property are accord- ingly regulated by the same law a,s the person of the owner, that is by the law of his Domicil. " Les meubles," says Cochin, " quelque sorte qu'ils soient, suivent le Domicile^''." Personal property having no Situs of its own, follows the domicil of its owner *^. Mr. Justice Story, in his Conflict of Laws, has dis- cussed at great length the reasoning of various Jurists as to the grounds upon which this doctrine proceeds, but their arg-uments all lead to the same result, and whatever may have been the true origin of the doc- trine, it has now received so general a sanction amongst civilised nations, that it may be treated as part of the Jus Gentium. The grounds upon which the Enghsh Tribunals have received the doctrine are stated by Lord Loughborough : " It is," he says, " a clear proposition not only of the Law of England, but of every country in the world, where Law has the semblance of a Science, that personal property has no locality. The meaning of this is, not that personal 47 Cochin, Qjluvres, Tom. V. General, 12 Clark and Finally, p. 85. (House of Lords) Repts. p. i. 4' Thomson V. The Advocate 238 RIGHT OF JURISDICTION. property has no visible locality, but that it is subject to that law which governs the person of its owner, both with respect to the disposition of it, and with respect to the transmission of it, either by succession or by the act of the party. It follows the law of the person*"." Lord Chief Justice Abbot has observed on a more recent occasion, that " personal property has no locaUty, and even with respect to that, it is not correct to say that the Law of England gives way to the law of the foreign country, but that it is part of the Law of England that personal property should be distributed according to the Jus Domicilii °''." Doraicii.of § 164. The Domicil of a person for international Doraicii of purposcs may be either his Domicil of origin, or his Choice. Domicil of choice. The Domicil of origin of a person is identical with the Domicil of his father at the time of his birth. " Patris originem unusquisque sequa- tur"." If his parents at the time of his birth should be on a temporary visit to a foreign country, the home of the parents, and not the country of liis birth, is the Domicil of origin of the child'^. The Domicil of origin is thus not necessarily identical with the place of birth. The place of birth on the other hand may constitute a person a natural born subject of one Sovereign for municipal purposes, whilst he is a domiciled subject of another sovereign for interna- tional purposes. The Domicil of origin cannot be divested during minority by a change of residence on the part of the minor with the intention of making his new residence his home, but it may be divested by the act of his father. If the father changes his 49 Still V. Worswiok, i Hemy, 451, S. C. 2 Clark and Fin. 571. Bliickstone's Repts. 690. 5' Codex, Lib. X. Tit. XXXI. .'" Doe d. Birthwhistlc v. Var- § 36. dill, 5 Barn, and Crcssv/ell, 438, ?- Wolffii Jus Gentium, § 138. RIGHT OP JURISDICTION. 239 residence and acquires a new Domicil, it becomes the Domicil of his minor children, and if the father dies leaving minor children surviving him, the father's Domicil of choice at the time of his death is the necessary Domicil of his children until they come of age, and are capable of acquiring a Domicil of choice. Every person of full age is capable of selecting a Domicil ; and if such a person removes from the country, where his father had his DomicU, to a foreign country with the settled purpose of making it his permanent residence, the country of his adoption be- comes his domicil of choice. Domicil being thus under the Law of Nations the foundation of jurisdiction over persons, it is intelligible on general principles that the residence of Ambassadors and Political En- voys in a foreign country, even if such residence con- tinue tip to the time of their death, being a residence " sine animo manendi," should not operate to change their Domicil, such as it was at the time when they became resident in the foreign country ; their extra- territoriahty besides secures to them an " immiscibi- Hty" of national character. A different rule however prevails with respect to Consuls or Commercial Agents, who, if permanently engaged in commerce themselves, may acquire a Domicil in the country where they reside. It is sometimes a question of great intricacy to determine in what place a person has his true Domicil. No person according to the Law of Nations is without a Domicil. In the absence of all evidence of any other Domicil de facto, the Domicil of Origin is the Domicil de jure°^, but a per- 53 Quoniam tamen domicilium bundiquoque domioiliumnaturale naturale tamdiu quis retinere vulgo retineve censentur. Wolff, censetur, quamdiu propria volun- Jus Gentium, § 139. tate sibi nullum constituit, vaga- 240 RIGHT OF JURISDICTION. son may have more than one Domicil for commercial piirposes ; as for instance, a person may be a partner in a great commercial estabKshment in New York, and in another equally great commercial establish- ment in LiverpooP' ; and in respect of contracts he may be subject to two different jmisdictions accord- ing as the contract is entered into by the Nev/ York establishment, or by the Liverpool establishment ; but no person can have more than one testamentary DomicU, as the latter is identical with the place of the party's principal estabKshment. To enter more minutely into the criteria of Domicil would be foreign from the purpose of the present treatise, which is concerned with Domicil only so far as the principle of DomicU influences the Jurisprudence of Nations, in reference to persons and personal property. Mr. Justice Story's excellent work on the Conflict of Laws and M. Fcelix's treatise on Private International Law may be consulted with advantage by those, who desire to become more accurately acquainted with the details of this branch of the Law of Nations. 34 Labeo judicat eum, qui plu- verius est. Dig. L. Tit. I. ^ 5. ribus locis ex requo negotietur. The San JosiS Indiano and Cargo, nusquam douiicilium habere ; 2 Gallison's American Eeports, qiiosdam autem dicere refert, p. 287. Tlie Portland, 3 Robin- pluribus locis eum incolam esse, son, p. 41. The Jouge Classina, aut domicilium habere ; quod 5 Eobinson, p. 502. CHAPTER X. RIGHT OF THE SEA. The use of the open Sea common to all mankind — A Common Law of the Sea — Affinity to the Koman Law in certain matters — Origin of the Admiralty Jurisdiction — Its connection with that of the Consules Maris — Piracy justiciable everywhere — Concurrency of Admiralty with National Jurisdiction — National Jurisdiction over the open Sea — Maritime Jurisdiction of a Nation — Territorial Seas distinguished from Jurisdictional Waters — Prescriptive Eight over portions of the Sea — Eight of Fishery on the High Seas — Neutrality of Jurisdictional Waters — Eight of Maritime Toll in respect of Lighthouses and Sea-Marks — Prescriptive Eight of Sea-Toll — The Sound Dues — The Straits between the Mediterranean and the Black Sea — The Comity of Nations in matters of Eevenue and Quaran- tine — Eight of Fishery in Jurisdictional Waters — Ceremonial of the High Seas — Ceremonial within Jurisdictional Waters. § 165. The Ocean or open Sea is by Nature not The use of capable of being reduced into the Possession of a sea com- Nation, since no permanent settlement can beformed ™°nkiiid.'^ upon its ever changing surface ; neither is it capable of being brought under the Empire of a Nation, as no armed fleet can effectively occupy it in its full extent, so as to preclude other Nations altogether from the use of it. Natine herself has in these respects set limits to human enterprise and human ambition. But independently of these insurmountable difficul- ties, the use of the open Sea, which consists in navi- gation, is innocent and inexhaustible ; he who navi- gates upon it does no harm to any one, and the Sea in this respect is sufficient for aU mankind. But Nature does not give to man a right to ajopropriate to himself things which may be innocently used by all, and which are inexhaustible and sufficient for all. For since those things, whilst common to aU, are suf- PART I. R 242 RJGHT OF THE SEA. ficient to supply the wants of each, whoever should attempt to render himself sole proprietor of them, (to the exclusion of aU other participants,) would imrea- sonably wrest the bounteous gifts of nature from the parties excluded. Further, if the free and common use of a thing, which is incapable of being appropri- ated, were likely to be prejudicial or dangerous to a Nation, the care of its own safety would authorise it to reduce that thing under its exclusive Empire, if possible, in order to restrict the use of it on the part of others by such precautions, as prudence might dic- tate. But this is not the case with the open Sea, upon which all persons may navigate without the least prejudice to any Nation whatever, and without exposmg any Nation thereby to danger. It would thus seem that there is no Natural warrant for any Nation to seek to take possession of the open Sea, or even to restrict the use of it by other Nations ^ AConunon § i66. The opeu Sea is, strictly speaking, nullius Sea. territorium. No Nation can claim to exercise jiu:is- diction over its waters on any ground of exclusive Possession. On the other hand, it is the pubhc high- way of Nations, iipon which the vessels of all Nations meet on terms of equality, each vessel carrying with it the laws of its own Nation for the government of those on board of it in their mutual relations mth one another, but all subject to a Common Law of Na- tions in matters of mutual relation between the vessels themselves and their crews. The origin of this Common Law of the Sea is lost in the darkness of a very remote antiquity, but it sprang into exist- ence with the earliest necessities of maritime com- merce. We find the rudiments of such a law amongst ■ Vattel, Lib. I. c. 23. § 279. Grotius, Lib. L c. 2. §3. Wolffii Jus Gentium, § 127. Kliiber, § 132. RIGHT OF THE SEA. 243 the Athenians ; and the Ehodian Laws of the Sea, of which a very few fragments have been preserved in the Digest ^ are supposed to have been a collection of Maritime Customs observed amongst the Nations estabhshed on the shores of the Mediterranean^, and which formed at such time their Common Law on Maritime matters. Rules of Law which prevailed amongst those Nations are still recognised by the Maritime tribunals of existing European Nations, as rules for the decision of analogous questions. § 167. It would appear, that the Romans under the Affinity to Empire with their usual wisdom recognised the Cus- Lawin cer- toms of the Sea, as furnishing the rule of decision inters.""^*' Maritime questions, where such Customs were not contrary to any positive Law of the Empire. Thus when Eudaemon of Nicomedia appealed to the Em- peror Antonine against the rapacity of the Publicans in the islands of the Cyclades, on the occasion of his having suffered shipwreck, the Emperor is represented to have replied*, " Ego quidem mundi dominus, Lex autem maris. Lege id Rhodia, quae de rebus nauticis prsescripta est, judicetur, quatenus nuUi nostrarum- legum adversatur. Hoc idem Divus Augvistus judi- cavit." Bynkershoek^, in discussing this passage of the Digest, has not approved the usual punctuation, nor admitted the received interpretation of the text, and has suggested that the words of the Emperor Antonine point only to a privilege which the Rho- dians themselves enjoyed of living luider their own laws, as long as they were not inconsistent with the Positive Law of the Empire. It is not very material for our present purpose to determine, which is the ^ Dig. L. XIV. Tit. II. 4 Dig. L. XIV. Tit. II. § 9. 3 Peckii Comment, ad legem 5 De lege Ehodia, c. 7. Rhodiam de jaetu. R 2 244 lUGHT OP THE SEA. more correct construction of the passage in the Digest. On a careful examination of the legislation of the Koman Emperors, so little will be found of positive enactment in Maritime matters, that we are led irre- sistibly to the conclusion, that there must have been a Consuetudinary Law, according to which questions of Maritime Contract and Tort were settled ; and the probabUity is, that the principles involved in that Consuetudinary Law were in harmony with principles, that were admitted in the Civil Law of Rome. At all events we find in portions of the Consuetudinary Law of the Sea, as it has come down to us in various collections of Sea-Customs, e. g. ^the Rooles or Juge- mens d'Oleron, the Consolato del Mare, and the Mari- time Law (Water-Recht) of Wisby, many feattures of resemblance to provisions which exist in the Civil Law of Rome, not indeed in pari materid, but on subjects of which the analogy is complete. It is pos- sible that these Rules of the Sea may be actual tra- ditions of the Civil Law itself, which, recommended by its natural equity, may have infiltered itself im- perceptibly into Maritime causes. Whatever may be the true explanation of this resemblance, these Cus- toms of the Sea have been received by all Nations, and all Nations exercise a concurrent jurisdiction to enforce them, and for this purpose there are special tribunals established in every country, known as Courts of Admiralty Jurisdiction. Origin of § i68. The origin of the term Admiral or Amiral raUy ju-^ ^^ not agreed upon amongst learned men. Some have risdiction. inclined to derive it from the Saxon aen mere eal,'' that is, over all the sea, others from the Asiatic Amir, 6 Pardessus, Collection de Lois ^ Godolphin, a View of the Ad- Maritimes ant&ieures au XVIII miralty Jurisdiction, anno 1661, Siecle. Paris, 1834. p. 3. EIGHT OF THE SEA. 245 or Emir, signifying Prsefect. It seems moi'e probable that the term came first into use amongst the Mari- time Nations of Southern Europe, and that it was de- rived from an Oriental Soiurce. Sir H. Spehnan is of opinion, that this high Officer was not known in Eng- land by that name or style before the beguxning of the reign of King Edward I, about the year 1272, although the office of Capitaneus maris existed before that time. The earliest Admiral of all France seems to have been Enguarantus Dominus de Causy in the reign of Phihp the Bold, about 1280®. The collection of CastUian Laws, known as Las Siette Partidas, and the origin of which is referred to a date as far remote as 1258 or 1266, contains a full definition of the Office of Admiral. " On appelle Amiral, le chef de tous ceux qui compose I'equipage des navires armes en guerre, et il a sur la flotte qui est comme le corps d'arm6e principal, ou sur une escadre qui sera de- tachee, le meme pouvoir que le roi lui-meme, s'il etait en personnel." Such seems to have been a brief sum- mary of the fxmctions of the Admiral of the King of Castile and Leon. On the other hand, it would appear from a collection of Maritime Laws of Catalonia and Aragon of the Fourteenth Century^" that the word " Amiral" in its simplest sea-meaning was used to denote the chief of any Maritime expedition, even if the expedition consisted of a single ship. It is not improbable that an extraordinary increase of piracy in the latter part of the Thirteenth Centiuy led to a more careful administration of the Laws of the Sea in England, in France, and in Denmark, after the exam- ple perhaps of Castile, and that the jurisdiction and 8 Godolphin on the Admiralty Lex 3. Jurisdiction, p. 21. 1° Pardessus, Lois Maritimes, 9 Part II. Lib. IV. Tit. 34. Tom. V. p. 404. 246 EIGHT OF THE SEA. cognisance of all matters whatever happening upon the Sea, by reason whereof there shoiild be cause of suit either between subjects and strangers or between strangers only, was with that object vested exclu- sively in a High Admiral with the full powers of the Lieutenant of the King. Its Con- § 169. Whatever may have been the origin of the with that institution of Courts of Admiralty, the forms of their of the proceedings were undoubtedly borrowed from the Consulea ■"- . . ° "^ Maria. Civil Law of Rome, and the irdes by which they were governed were, as is everywhere avowed, the ancient Laws, Customs, and Usages of the Seas. There can scarcely be a doubt that the Admiralty Courts of Eng- land and the Maritime Courts of all the other Powers of Europe have been form.ed upon one and the same common model, and that their jurisdiction, if not restricted by the territorial law, included all those sub- jects of which the Consular Courts {Consules Marisy° in the cities of the Mediterranean had cognisance, and with which subjects the Municipal judges in those cities were forbidden to intermeddle. These Courts are described in the Consolato del Mare as having juris- diction of all controversies respecting freights ; of damages to goods shipped ; of the wages of mariners ; of the partition of ships by pubUc sale ; of jettison ; of commissions or bailments to masters and mariners ; of debts contracted by the master for the use and neces- sities of his ship ; of agreements made by the master with merchants, or by merchants with the master ; of goods found on the high sea or on shore ; of the ar- mament or equipment of ships, galleys, or other ves- sels, and generally of all other contracts declared in the customs of the sea". It is not within the scope '° De Lovio v. Boit. 2 Gallison's Reports, p. 400. " Consolato del Mare, cli. 22. Godolphin, Adm. Jur. p. 45. RIGHT OF THE SEA. 247 of the present work to enter further into the details of the Admiralty Jurisdiction. But it may be ob- served that there is a Maritime Law of Nations in time of war as well as in time of peace. The Admiralty CoTu-t exercises a voluntary jurisdiction in time of Peace ad instantiam partis, and is in such matters termed an Instance Court, whilst in time of War it exercises a compulsory jurisdiction over aU the com- missioned vessels of the Crown, which are required to bring their captures before it, in order that the Ad- miral or his Lieutenant may determine whether such captures are good prize of war or not. The Ad- miralty Court is for such purposes termed a Court of Prize, and its functions are not merely to administer the Law of Nations as between the belHgerents, but the Law of Nations as between the belHgerents and neutrals. § 170. The High Seas are said in a certain sense to Piracy jus- be nullius territoriwm, as not being subject to the ex- every- clusive Possession or Empire of any Nation. In an- ^^^''^• other sense they may be called the common highway of Nations, and perhaps this is the more correct ex- pression, seeing that aU who navigate them are sub- ject to a Common Law of Nations, and, in matters within the scope of that Law, are amenable to the maritime tribunals of all Nations. The maintenance of the peace of the Sea is one of the objects of that Common Law, and all offences against the peace of the Sea are offences against the Law of Nations, and of which aU Nations may take cognisance. The robber equally with the murderer on the High Seas is tech- nically a sea-felon or pirate, and every hand may be lawfully raised against him ; he is, in fact, regarded as an enemy of the human race (hostis humani ge- neris). The Pirate has no National character, and to 248 RIGHT OF THE SEA. whatever coimtry he may have originally belonged, he is justiciable everywhere, being reputed out of the protection of all laws and privileges whatever ^l Concurren- § 171. There are however portions of the sea, upon raity wift" which if offonces be committed, they are not merely ?urii°dic- regarded as offences against the Peace of the Sea, but tioi). offences against the Peace of a Nation. Thus al- though the jurisdiction of the Admiralty travels everywhere with the flow of the tide, yet when the Sea approaches the territory of a Nation or passes within the headlands of its coast, an offence commit- ted upon tidal waters may become an offence not merely against the Peace of the Sea, but against the Peace of the Nation, and accordingly will be cognisa- ble by the Civil Courts of the Nation as well as by the Admiralty Court. By practice, indeed, the Ad- miralty Jurisdiction over tidal rivers is restricted to such portions of them as are below the first bridges^' {infra priinos pontes) seawards. Above the first bridges, which are effective impediments to free pas- sage to or from the sea, the Civil Law of the Nation is of exclusive force : below that point, untO. we reach the High Seas, the Civil Law of the Nation operates concurrently with the Maritime Law of Nations. National §172. It bccomes nocessary therefore to inquire over the what porj^iou of the open sea is by the practice of open sea. j^f^^JQ^g^ }^g;[(j ^q j^g ^thiu the Operation of the Terri- torial Law of a Nation. " It is of considerable import- ance," writes VatteP*, "to the safety and welfare of States, that a general Hberty be not allowed to all comers to approach so near their possessions, espe- cially with ships of war, as to hinder the approach of >2 Life of Sir Leoline Jenkins, phin, Adm. Jurisd. p. 134. cf. 15. Tom. II. p. 714. Kich. II. c. 3. '3 Spelman'a Reliquire. Godol- '4 Droit des Gens, L. I. § 288. EIGHT OF THE SEA. 249 trading Nations, and molest their navigation." Upon this principle a Neutral Nation is held to be entitled to preclude Belligerent Powers from carrying on mu- tual hostilities upon the open sea within a certain distance of its coast. That distance, as between Na- tion and Nation, is held to extend as far as the safety of a Nation renders it necessary, and its power is adequate to assert it ; and as that distance cannot, with convenience to other Nations, be a variable dis- tance, depending on the presence or absence of an armed fleet, it is by practice since the introduction of firearms identified with that distance, over which a Nation can command obedience to its Empire by the fire of its cannon ^''. That distance, by consent, is now taken to be a Maritime League seawards along all the coasts of a Nation. Beyond the distance of a sea-league from its coasts, the Territorial Laws of a Nation are, strictly speaking, not operative. It may happen that a Nation chooses to extend its own Laws over its National vessels wherever they may be na- vigated on the High Seas, but however general and comprehensive the phrases used in the Municipal Law may be, they must be always restricted in their con- struction to the citizens of the State to which the vessel belongs ^^, and to the mutual relations between such citizens, and cannot be extended to the vessels of other Nations, or to the persons on board of them. ^173. Writers on Public ^^ Law have spoken of the Maritime open sea (mare vastum) within the distance of aif™Na-'°" Maritime League along the coasts of a Nation as its *'°"' Maritime Territory (See-Gebiet). If the Law of Na- tions be held to be a portion of the Law of each Nation 14 Bynkershoek, L. II. c. 3. Eeports, § 370. § 13. '6 Kluber, § 130. Wlieaton's '5 The Apollo, 9 Wheaton's Elements, pt. 4. c. 4. § 6. 250 EIGHT OF THE SEA. in such matters as are within its scope, then there may be no vaHd objection to the use of the phrase Maritime Territory in the sense of Territory subject to the Law of the Sea, but inasmuch as the term ter- ritory in its proper sense is used to denote a district within which a Nation has an absolute and exclusive right to set Law, some risk of confusion may ensue if we speak of any part of the open sea over which a Nation has only a concurrent right to set Lav), as its Maritime Territory. It would tend to greater clear- ness, if Jurists were to confine the use of the term Maritim,e Territory to the actual coasts of a Nation, or to those portions of sea over which a Nation by practice is entitled to exclusive jurisdiction, and over which its Territorial Law has paramomit force and operation, and were to designate the extent of tidal waters over which the Territorial Law of a Nation operates concurrently with the Law of Nations as its Jurisdictional Waters^''. Territorial §174. If a sca is entirely enclosed by the Terri- 063.S dlStm- _ Tk-r • 11 1 • • guished tory 01 a JNation, and has no other communication diotiona™ with the Ocean than by a channel of which that Nation waters. may take possession, it appears that such a sea is no less capable of being occupied and becoming property than the land, and it ought to foUow the fate of the country that surrounds it^®. The Black Sea, whilst its shores were m the exclusive possession of the Ottoman Porte, was an instance of a Territorial Sea of this character. So likewise Straits, which serve as a communication between two seas, and of which the shores on both sides are the Territory of one and the ^^ Vattel, L. I. § 292. Wolff, ment in the Sclioouer Fame, § 128. 3 Mason's American Eeports, '8 Mr. Justice Story has adopt- p. 152. cd this expression in his judg- RIGHT OF THE SEA. 251 same Nation, are capable of being reduced into the possession of that Nation. In the same manner a bay of the Sea, the shores of which are the Territory of one and the same Nation, and of which the entrance may be effectively defended against aU other Nations, is capable of being reduced into the possession of a Nation. " By this instance," writes Grotius^^ " it seems to appear that the property and dominion of the Sea might belong to him who is in possession of the lands on both sides, though it be open above as a gulf, or above and below as a strait, provided it be not so great a part of the Sea, as when compared with the lands on both sides, it cannot be supposed to be a portion of them." Puffendorf^", to the same effect, says, "that gulfs and channels or arms of the Sea are, according to the regular course, supposed to belong to the people with whose lands they are encompassed." Whenever a Nation has an exclusive right over an entire sea, or over a bay, or over straits, no other Nation can claim a right of navigation therein against its will. But in case the opposite sides of a bay or strait are inhabited by different Nations, then under the general principle of the Law of Nations, each Nation has a right to go to the central line, drawn at low water mark, as the hmit of its maritime territory ^\ But although the territorial Hmit of either Nation for purposes of ab- solute jurisdiction may not extend beyond the central deep-water line, yet the right of innocent use of the entire bay or strait for the purposes of navigation or passage may be common to both Nations. Such a right does not destroy the territorial jurisdiction of each Nation as far as the middle of the stream, but it ■9 De Jure Belli et Pacis, L. II. ^'^ Law of Nature and of Na- c. 3. § 8. tions, L. IV. c. 5. § 8. 2' Ibid. 252 EIGHT OF THE SEA. is in the nature of an easement, as it is called in English Law, or a servitude, as it is termed in the Roman Law^\ It is in fact analogous to the right oi private way over the land of another. This right of passage and navigation must exist as a common right in all those cases, where such passage or navigation is ordi- narily used by both Nations, and is indispensable for their common access to their own shores. A river or bay may be so narrow, or so irregular, or so Hable to difficulties from winds, waves and currents, that it cannot be navigated by either Nation, without each having a right of passing over the whole waters at all times. If in such a case no exclusive right is recog- nised in either Nation, the constant use by both is a conclusive proof of a common right of passage and navigation in both. Prescript- § 175- In the case of portions of the Sea, a Nation ove"por- niay have a peculiar possession of them, so as to Sea ^ °^ ^^^ exclude the universal or common use of them by other Nations ^^. Lord StoweH held that portions of the Sea might be prescribed for^ ; and Mr. Justice Story deemed it possible that a Nation might have an exclusive use founded on the acquiescence or tacit consent of other Nations. There is no inconsistency between these views and those of Grotius, who says, " that he who has occupied any part of the Sea can- not lawfully hinder the navigating therein of ships that are unarmed, and give no room to apprehend danger ;" for Grotius must be tmderstood as speak- ing of the natural right of a Nation, and not of an instituted right founded on the tacit consent of other 2« Instit. II. Tit. 3. De Servi- ^2 Kliiber, § 133. tutibus. Hugo, Histoire de Droit ^3 The Schooner Fame, 3 Ma- Eomain, T. I. § 202. Kliiber, § son's Eepts., p. 150. The Twee 137. Gebroeders, 3 Rob. p. 339. RIGHT OF THE SEA. 253 Nations^*. Lord Stowell^' has observed that the general presumption certainly bears strongly against such exclusive rights, and the title is a matter to be established on the part of those claiming it, in the same manner as all other legal demands are to be substantiated by clear and competent evidence ; in other words, by proof of ancient and constant usage. § 176. The right of fishing in the open Sea or main Eight of Ocean is common to aU Nations, on the same prin- the High ciple which sanctions the common right of navigation, ^^^" namely, that he who fishes in the open Sea does no injury to any one, and the products of the Sea are in this respect inexhaustible and sufficient for all. It is possible indeed that one Nation may possess an exclu- sive right of navigation and fishing against another Nation, by virtue of treaty- engagements, as it is competent for a Nation to renounce a portion of its rights ; and there have been instances of such renun- ciations both in ancient and modern times. Thus by the Treaty of Vienna, (16 March, 173 1,) the House of Austria renounced in favour of the British and the Dutch the right of her subjects to send ships from the ports of the Low Countries to the East Indies. So by a Treaty concluded (anno 1400) between Henry VII of England and John II of Denmark, and by another treaty (anno 1523) concluded between Henry VIII of England and Christian II of Denmark, it was agreed that the merchants and fishermen of Eng- land should fish and traffic upon the Northern Sea betwixt Norway and Iceland, under the condition of first asking leave and renewing their Licences every seven years (de septeimio in septennium) from the 24 Puffendorf, L. IV. c. 5. 25 The Twee Gebroeders, 3 § 8. Kob. p. 339- 254 EIGHT OF THE SEA. Kings of Denmark and their Successors. At a later period the Dutch appear to have admitted the exclu- sive right of the British to the fisheries in the North Sea, by making payment and taking out Hcences to fish, which payment and licences were afterwards suspended by Treaties between England and the Burgundian Princes. " All this," writes Grotius^®, after citing various instances of treaties from ancient history, "does not prove that those who thus limited the naAdgation of any other people had taken posses- sion of the sea, or of the right to sail there. For Nations as weU as private persons may give up not only that right, which is properly their own, but that also which they have in common with all mankind, in favour of him for whose interest it is made." Treaties of this order have now fallen entirely into disuse. Neutrality ^i//. The Neutralisation of portions of the Sea, tioiil™ '" that is, the exclusion of Foreign Nations fi-om the use of its waters for beUigerent purposes, does not conflict with those considerations of Natural Right, which forbid the exclusion of Foreign Nations from the peaceful use of its waters. It may be regarded as an established rule of Pubhc Law, that a Nation may prohibit all acts of hostihty on the part of other beUigerent Nations within the Hmits of its Maritime Jurisdiction, including the open Sea along all its coasts within the distance of a marine league. The same privilege is enjoyed in respect of Bays or Sea- Chambers^', that is, portions of the Sea cut off" by lines drawn from one headland to another. The -6 L. II. c. 3. § 4. United States on the case of the *? Life of Sir Leoline Jenkins, Ship Gi-ange, 14 May, anno 1793, T. II. p. 727, 728, 780. Opinion T. I. p. 15. Waite's American of the Attorney-General of the State Papers, T. I. p. 73. waters. EIGHT OP THE SEA. 255 claim of Neutrality, however, cannot be maintained to the extent of prohibiting a belligerent Power from passing over waters, claimed as neutral waters, with a view to an ulterior act of warfare against the Enemy. The act of passing inoffensively over such portions of water without any violence committed therein, is not considered as any violation of Neutral privileges ; such waters are regarded in times of war, equally as of peace, as the common thoroughfare of Nations, and no permission is required for liberty to pass through them ; although they are privileged so far, that no actual acts of hostility may be committed within them. In certain cases the privilege of Neu- trality seems to extend over portions of the Sea which are not within the ordinary limits of the mari- time jurisdiction of a Nation ; as for instance, over arms of the Sea, and over broad Straits, such, for example as the Strait which separates Ireland from Great Britain, commonly called St. George's Channel^. But this question belongs more properly to the Rights of Nations in time of War, and will be considered more fully in a subsequent part of this work. Byn- kershoek makes one exception to the violation of Neutral Waters, and supposes that if an enemy should be attacked upon the High Sea, and take refuge within the jizrisdictional waters of a Neutral Nation, the victor may pursue his vanquished foe dum fervet opus, and seize his prize within the juris- diction of the Neutral State. Casaregis and some other foreign jurists maintain a similar doctrine ; but Valin, Emerigon, Vattel, Azuni, and others are of an opposite opinion, and hold that when the flying enemy has entered the privileged hmits of the Neu- tral Jurisdiction, he is under the safeguard of the 28 Martens, Precis, § 42. 256 EIGHT OP THE SEA. Neutral Power. Lord Stowell^" seems to consider that Bynkershoek's opinion is given with many qua- lifications, and expressly as an opinion which he did not find to have been adopted by any other writer, and Mr. Chancellor Kent'" regards Bynkershoek's opinion as rested by him entirely on the authority and practice of the Dutch, and not confirmed either by the writings of Pubhcists or the Usage of Nations. He holds, accordingly, that the opposite doctrine rests upon sounder views. In this equally as in any other case, a positive act of warfare would be in strict Law a violation of the privilege of the Neutral Power, which is entitled to protect aU persons and property within its Maritime Jurisdiction. It is the privilege however of the Neutral Power alone to insist on the restoration of property captured within its Jurisdic- tion, and if there should have been extreme bad faith on the part of the worsted beUigerent, as, for instance, if he should have lain in wait within the shelter of Neutral waters with a view to sally out suddenly, and take his adversary at a disadvantage, with the inten- tion, if he should be worsted, to take refuge again vdthin the Neutral waters, the Neutral Power may with reason decline to extend its shield over the van- quished, if the enemy whom he has attacked shoiild pursue him dumi fervet opus, and capture him within the Maritime Jurisdiction of the Neutral Power. It is sometimes a matter of treaty-engagement''^ between two Nations, that neither shall permit the ships or goods belonging to the citizens or subjects of the other to be captiu-ed within cannon shot of their 29 The Anna, 5 Kobinson, p. 3 1 Treaty between Great Bri- 385. tain and the United States, (anno 30 Commentaries on American 1794,) Art. 25. Martens, Ee- Law, Tom. I. § 120. cueil, V. p. 684. EIGHT OF THE SEA. 257 coast, or in any of the bays, ports, or rivers of their territory by the ships of war of a third Power. § 178. It is not contrary to the Law of Nature or Eight of that of Nations, writes Grotius^^ that those who shall ToTin™e- take upon them the burden and charge of securing ^;^^*j.°* and assisting Naviefation, either by erectinof or main- touses and . ° Sea-marks. taining Lighthouses, or by affixing Sea-marks to give notice of Rocks and Shoals, shoiild impose a reason- able tax on all who sail that way. Martens classes this right amongst the Jura litoris. Azuni'* con- siders that the Maritime Powers have a right to im- pose contributions upon aU vessels, which are navi- gated within the Hmits of their Maritime Jurisdiction, to defray the expenses which are necessary to secure the safety or convenience of navigation. Accordingly if fire-beacons are kept alight on shore or afloat dur- ing the night, and buoys are placed upon the shoals to indicate the deep and shallow water passages, and skilful mariners acquainted with the dangers of the navigation are kept ready to act as pilots at the call of foreign vessels, and to conduct them safely along the coasts of a Nation ; it is not contrary to the Law of Nature or of Nations that foreign vessels availing themselves of these aids to navigation, should be re- quired to contribute to the expenses of maintaining them. Baldus^^ holds Sea-tolls to be most equitable in their nature, when they are levied to promote the security of navigation : " Vectigalia Maritima sunt sequissima, quoniam ad tuitionem maris et veram in eo securitatem prsestandam constituta reperiuntur." Every vessel, which casts anchor within the jurisdic- tional waters of a Nation, becomes hable to the juris- diction of that Nation in regard to all reasonable dues 32 L. II. ch. III. § 4. L IV. ch. IV. § 153. 33 Droit Maritime de I'Europe, 34 Baldus, Tit de rer. div col. z. PART I. S 258 RIGHT OP THE SEA. levied for the maintenance of the general safety of navigation along its coasts ^l If a vessel merely passes along the coasts of a Nation vdthout casting anchor within the limits of a marine league, or without entering any port or harbour, it is not subject to the payment of any territorial dues. The Eight of Passage over all portions of the open Sea is one of the Natural Rights of Nations. It can only be made subject to condi- tions by estabhshed Custom, which impHes an imme- morial acquiescence on the part of aU Nations. Prescrip- §179- The Right which a Nation has to levy con- o7seaToU. tributious upou aU ships which come within its Mari- time Jurisdiction towards the maintenance of Light- houses, Beacons, and other accessories to the safety of navigation, must not be confounded with a right which a nation may possess by Prescription to levy The Sound toU upou passing vessels'*. The Sound Dues for- merly levied by Denmark upon all vessels passing through the Sound and the Two Belts rested upon an immemorial prescription. The actual origin of these Dues is lost in the obscurity of a remote anti- quity, and it must remain undetermined whether the Northmen, who were masters of the narrow Straits leading from the North Sea into the Baltic Sea, levied toU arbitrarily upon all passing vessels, as a consider- ation for permission to pass through the Straits un- molested, or as a compensation for expenses inciurred by them in securing the safe navigation of the Baltic Sea by keeping it clear of pirates, and by maintain- ing Lights and Sea-marks to indicate the navigable channels. It is unquestionable, however, that, at the J5 Azuni, Droit Maritime, ch. name of Villefi-anche, on all ves- II. Ai't. IV. p. 288. sels passing within eighteen miles 3^ The Dukes of Savoy at one distance fi-om the poi-t of Nice, time levied a toll, under the Azuni, T. I. p. i8i. BIGHT OP THE SEA. 259 period when a system of Public Law began to regu- late the intercourse of Nations, the claim to levy a toll upon a narrow Sea-passage, like the Sound and the Belts, was in strict conformity with the prevailing ideas as to the Right of Empire, which a- Nation might exercise over Straits of the Sea, the passage of which it could effectively control. VatteP'', for in- stance, places the right of Denmark to levy customs on the passage of the Sound on the same foundation with the right of a Nation to establish tolls upon land or upon a riv§r. Whatever may have been the origin of the Sound Dues, the absolute Right of Denmark to the control of the Sea-passages into the Baltic was acknowledged by the Hanse Towns in a treaty as early as 1368, and by England as early as 1490 ; and the payment of tolls on the passage of the Soimd was recognised as in previous use (wie vor alters her), in a treaty concluded at Spires, anno 1544, between the Emperor Charles V and King Chxi&tian III of Den- mark^^. This treaty regulated the amount of the tolls, and formed a precedent for similar treaties be- tween Denmark and other Nations ^*. This Right has accordingly been rested by Danish Jurists on imme- morial Prescription, sanctioned by the concurrent evidence of a long series of Treaties recognising the existence of these tolls " as of olden time," and stipu- lating only as to the amount and mode of levying them. The Sound Dues may henceforth be regarded as matters of history, rather than of practical interest, except as illustrating an Exceptional Right, which may have been in conformity with the General Law at the n Droit des Gens, L.I. § 291. 39 The treaty of 1645 is in 38 Schmauss, Corp. Jur. Publ. Schmauss, I. p. 536. I. p. 258. S 2 260 RIGHT OF THE SEA. time of its origin, but which in modern times rested upon a very special foundation. The tolls were levied upon the tonnage of the ships and also upon the value of the goods laden on board, and the incon- venience to modern commerce, resulting from mer- chant vessels being obliged to bring up either at Elsinore if they passed through the Sound, or at Wyborg if they passed through the Great Belt, was found to be so great, that the maritime Nations of Europe*" have entered into a Convention with Den- mark to redeem the tolls for ever ; in o^her words, to purchase for their own vessels the freedom of the navigation of the Sound and the Belts ; and the United States of America, which had for a short time disputed the Prescriptive Right of Denmark as against a State of the New World, has followed the example of the European Powers, and has entered into similar Treaty-engagements with Denmark in behalf of Ame- rican vessels ■'^ The straits § i8o. The exclusive Right which the Ottoman Porte the Medi- sxercises over the Straits and the intermediate sea terranean wHch comiect the Mediterranean with the Black Sea, and the Black Sea. rests upou a Prescription which has obtained the for- mal sanction of the Great Powers of Europe, under Conventions concluded between them and the Porte. The Right of the Porte had a lawful origin at the time when the shores of the Black Sea were in the exclusive possession of the Ottomans, but after Russia had made large territorial acquisitions on its shores, the latter Power, imder the Common Law of European Nations, had a right to navigate the waters of the Black Sea, and to pass outwards with trading vessels 4° Treaty of Copenhagen, March 4 ' Treaty of Washington, April 14,1857. Martens, Iv.E G^n. 11,1857. XVI. pt. II. p. 345. EIGHT OF THE SEA, 261 into the Mediterranean. But the Ottoman Porte did not at that time acknowledge any Pubhc Law in common with the Christian Powers of Europe, and the latter Powers had not the right, if they had pos- sessed the might, to impose their system of law upon the Ottoman Nation. Accordingly as the Ottomans regarded no other law as binding upon them with regard to Christian Nations, than the express stipu- lations of treaties, the free navigation of the Straits was secured to the merchant vessels of Christian Nations by express Conventions on the part of the Porte, with Russia in 1774, with Austria in 1784, with Great Britain in 1799, with France in 1802, with Prussia in 1806. The Porte has meanwhile kept the Straits closed against the war-ships of all Nations during the time when it has itself remained at peace with aU Nations, and this practice of the Porte obtained a formal sanction, as an ancient rule of the Ottoman Empire, from the Great European Powers with the exception of France, in the Treaty conckided in London, July 13, 1841*1 It has since been more formally confirmed as part of the Pubhc Law of Europe by the Treaty of the Straits, annexed to the Treaty of Peace concluded at Paris, March 30, 1856*^. ^181. There is a certain class of cases which seem The Co- at first sight to conflict with the position that a geo- Nations in cfraphical leasfue seawards alone^ its coasts is the Hmit Matters of or . , . . , . Kevenue of the maritime jurisdiction of a Nation, and that be- .-md Qua- yond that distance its Civil Law is in operation only over its own National vessels. Thus the Statute Law of Great Britain (9 Geo. II. c. 35 and 24 Geo. III. c. 47.) sometimes described as the Hovering Acts, au- thorises the National cruizers to seize aU merchant 4^ Martens, N. K. Gen. II. p. 128. 43 M. T. XV. p 782. 262 RIGHT OF THE SEA. vessels, which are found with certain cargoes on board destined for Ports of Great Britain, if they are found within the distance of four leagues from the Coast, and vessels so seiiied have been brought for adjudica- tion before the tribunals of the seizors, and have been declared forfeited for an attempt at illicit trade. So, again, by 26 Geo. II. all vessels coming from places from whence the plague might be brought, and there- fore Kable to Quarantine, were required to make signals on meeting other ships within foiir leagues** of the United Kingdom under a penalty of £200. In ■ a simdar manner the Acts of Congress of the United States of North America, such as the Collection Act of 1799 and the Act of 1807 against the impor- tation of slaves, authorised the seizure of vessels laden with certain cargoes within four leagues of the American Coasts. The regulations of Portugal and of Spain, ex- cluding the commercial intercourse of foreigners with their respective Colonies, were of an analogous charac- ter. Such laws and regulations, however, have no foundation of strict Right against other Nations. Lord StoweU in the well known case of the Louis*' alludes to an instance of this kind in the case of a Swedish Ordinance authorising Swedish cruizers to examine foreign vessels on the high seas bound to Swedish Ports, which however was resisted by the British Go- vernment as mxlawful, and the claim was finally with- drawn by the Swedes. In a similar maimer Great Britain complained of the right claimed by Spain to search British vessels on the High Seas, which was carried so far that the Spanish giiardacostas seized 44 The distance within which the British Coasts by 6 Geo. IV. vessels are regarded as amenable 0. 78. to British Quarantine Eegula- 45 3 Dodson, p. 246. tions is fixed at two leagues from EIGHT OP THE SEA. 263 vessels not in the neighbourhood of their coasts. This practice was the subject of long and fruitless negocia- tions, and led at length to open war. Great Britain, however, did not contend that British vesels actually engaged in illicit trade were entitled to pass unmo- lested by the revenue cruizers of Spain until they came within the maritime jurisdiction of that country, but she maintained that Spain enforced her right of search for the protection of her commerce with her Colonies in an unreasonable and vexatious manner. Mr. Justice Story*'' has properly pointed out that the State which authorises her cruizers to effect such seizures beyond the Hmits of her Maritime Jurisdic- tion, inciu"s a responsibility towards Foreign Powers. It is only under the Cotnity of Nations^'' in matters of Trade and Health, that a State can venture to enforce any portion of her CivU Law against foreign vessels, which have not as yet come within the limits of her Maritime Jurisdiction. A State exercises in matters of Trade for the protection of her Maritime Revenue, and in matters of Health for the protection of the Hves of her people a Permissive Jurisdiction, the ex- tent of which does not appear to be limited within any certain marked boundaries, further than that it cannot be exercised within the Jurisdictional waters of any other State, and that it can only be exercised over her own vessels and over such foreign vessels as are bound to her ports.^ If, indeed, the Revenue Laws or the Quarantine Regulations of a State should be such as to vex and harass unnecessarily foreign commerce, foreign Nations will resist their exercise. ■16 The Mariana Flora, XI. §31. Wheaton, p. 40. Church v. Hub- 4^ The Apollo, 9 Wheaton, bard, 2 Cranch, p. 235. p. 371. 47 Kent's Commentaries, Tit. I. 264 RIGHT OF THE SEA. If, on the other hand, they are reasonable and neces- sary, they will be deferred to oh reciprocam utilita- tem. In ordinary cases indeed, when a merchant ship has been seized on the open seas by th'e cruizer of a Foreign Power, when such ship was approaching the coasts of that Power with an intention to carry on iOicit trade, the Nation, whose mercantile flag has been violated by the seizure, waives in practice its right to redress, those in charge of the offending ship being considered to have acted with mala fides and consequently to have forfeited aU just claim to the protection of their Nation. Right of S 182. The Right of Fishery comes under different Fishery. . . . considerations of Law from the Hight of Navigation, as the Right of Fishery in the open sea within certain limits may be the exclusive Right of a Nation, The usus of aU parts of the open sea in respect of naviga- tion is common to aU Nations, but the fructus is dis- tinguishable in law from the usus, and in respect of fish, or zoophites, or fossil substances, may belong in certain parts exclusively to an individual Nation. The Practice of Nations has sanctioned the exclusive Right of every Nation to the fisheries in the waters adjacent to its coasts within the hmits of its Ma- ritime Jurisdiction,^" and accordingly we find that a permission for the subjects of one Nation to fish within the Jurisdictional waters of another Nation is a frequent subject of Treaty-engagement. " The va- rious uses of the sea," writes Vattel,^" " near the coasts render it very susceptible of property. It furnishes fish, shells, pearls, amber," &c. Now in aU these respects its use is not inexhaustible ; wherefore the Nation, to which the coasts belong, may appropriate 49 Wheaton's Elements, Part II. c. 4. § 5. Azuni, Tom. I. c. ix. Art. 8. ,"f' Droit des Gens, L. I. § 287. EIGHT OF THE SEA. 265 to itself an advantage which Natvire has so placed within its reach, as to enable it conveniently to make itself master of it and to turn it to profit, in the same manner as it has been able to occupy the dominion of the land which it inhabits. Who can doubt that the pearl fisheries of Bahrem and Ceylon may lawfully become property ? and though where the catching of (swimming) fish is the object, the fishery appears less liable to be exhausted, yet, if a Nation has on its coast a particular fishery of a profitable nature, and of which it may render itself master, shall it not be per- mitted to appropriate to itself that Natural benefit, as an appendage to the country which it possesses, and to reserve to itself the great advantages which it may derive by commerce, in case there be a sufilcient abundance of fish to enable it to furnish the neigh- bouring Nations with a supply 1 But, if so far from making itself master of a fishery, a Nation has once acknowledged the conunon right of other Nations to come and fish there, it can no longer exclude them from it ; it has left that fishery in its primitive state of communion, at least with respect to those who have been accustomed to take advantage of it." Treaty-engagements lq such matters do not give any other right than that which is expressed in the speci- fic terms, although there may be found in the recitals of certain Treaties recognitions of Bights foiuided on grounds independent of all Treaties. Thus there are early Treaties between France and England, under which it was agreed that the Subjects of either Crown might fish anywhere in the seas, which separate the two kingdoms, during certain seasons of the year. The legitimate inference, deducible from the fact that such fishery was made a matter of Treaty-engagement, is, that at other seaso]is of the year the Subjects of the 266 BIGHT OP THE SEA. two Crowns had not a common right of fishing every- where in those seas. The existing Treaty-engage- ments between Great Britain and France proceed upon another view of mutual convenience, namely, that it is desirable to define the limits within which the general right of fishing upon all parts of the coasts of either Nation shall be exclusively reserved to its own Subjects. The Convention of Paris (3 Aug. 1839)'^ has accordingly provided that the Subjects of either State shall enjoy an exclusive right of fishery within a distance of three miles from low water-mark along the whole extent of its coasts. There is one peculiar provision in this Convention which deserves notice. By the Ninth Article it is stated to be the understanding of both parties that the distance of three mUes, limiting the exclusive right of fishery upon the coasts of the two countries, shall be mea- sured in the ease of bays, of which the opening shall not exceed ten mUes, from a straight line drawn across from one Cape to another. Ceremonial $183. The High Soas being the common highway Seas.** ^^ of Nations, all Nations meet thereon on terms of equahty. The Usage of Nations has accordingly established a Ceremonial of the Sea to be observed between the public vessels of different Nations, and between pubhc and private vessels respectively wliich meet upon the High Seas^^. The question of Maritime Ceremonial, as regards the High Seas, was at one time considered not to involve considerations of courtesy merely as between Nation and Nation, but to imply a recognition of superiority and an acknowledgment of inferiority, as 5' Martens, iN'.R. XVI. p. 954. Dominio Maris, c. i. and 4. 5* Kliiber, § 127. Martens, Wheaton's Elements, Pt. II. c. 3. Precis, §158. Bynkerslioek de §7. EIGHT OP THE SEA. 267 the case might be, on the one side or on the other, and disputes on this head have frequently given occa- sion to war^'. Nations, for instance, have claimed Rights of Sovereignty over considerable portions of the open Sea, and have insisted upon the pubhc ves- sels of other Nations lowering their flag when sailing in those seas ; or they have asserted a general Mari- time supremacy, and insisted upon the public vessels of other Nations striking their flag to their armed sHps, whenever they should meet them upon the High Seas. All these pretensions are now matters of History, and as far as salutes between the vessels of difierent Nations on the High Seas are concerned, whether those salutes consist in striking the flag, (sahit de pavfllon,) or in lowering the sails, (salut des voiles,) or in firing a certain number of guns, (salut du cannon,) the Ceremonial is essentially a matter of coxurtesy. The Ceremonial as between pubhc vessels is now confined entirely to a salute of guns. It is volun- tary on either side, and it proceeds altogether upon a calciilation of equahty, as between Nations. All Inter- national salutes are therefore in strict practice to be returned gun for gun. In some cases this is matter of direct Convention between Nations ; in other cases it is matter of courteous understanding between the commanders of the respective vessels ; and Nations for the most part allow the commanders of their public vessels to reciprocate the special compliment- ary salutes, which the rules of their own service au- thorise in the case of one ship of war meeting another ship of war bearing the flag of an ofiicer of superior rank. Thus a British ship^* of war, bearing the broad 53 Ortolan, Diplomatie de la land, in 1652, and again in 167 i. Mei', L. II. c. 15. Declaration £4 Regulations relating to Sa- of war by England against Hoi- lutes. 268 RIGHT OF THE SEA. pendant of a Commodore, on meeting a French ship of war bearing an Admiral's Flag, may salute the French Admiral personally with the same number of guns to which a British Officer of corresponding rank would be entitled. It is understood, however, that the saluting vessel in such a case will receive a salute of gun for gun in return. A French vessel on the other hand, is authorised to return the salute of a foreign vessel gun for gun, whatever may be the rank of the respective commanders of the two vessels, pro- vided that the salute does not exceed twenty-one guns, which is the number of guns, as generally un- derstood, for a Royal Salute^'. The practice of most Nations is to salute with an uneven number of guns'", but the regulations as to the number of guns to be fired on each occasion varies with the pleasure of each Nation. The following rules are generaP^. A siagle ship of war by usage salutes a fleet or squadron, and an auxiliary squadron salutes the principal fleet. A vessel carrying a Captain's flag, salutes a vessel carry- ing a Commodore's broad pendant ; and the latter in turn salutes the flagship of an Admiral. With re- gard to merchant vessels, the practice which prevailed in former days for them to salute the pubHc ships of .'5 Ordonnance du Roi du i Man of War being saluted by " Juillet, 1831. foreign vessel, answers the salute '* It is stated by Martens, with the same number of guns. § 158. who is followed by Klii- 2. No salute must exceed twenty- ber, § 118. and several other pub- one guns, even in answering a licists, " that Sweden is an ex- salute. 3. In foreign harbours caption to the rule of odd num- it is left to the discretion of the bers, and that her vessels of war Commanders to follow the rules always salute with an even num- of other Nations. 4. The sa- ber of guns. The following are lutes in the Swedish Navy vary the regulations of the Swedish from five, seven, nine, &c., to Navy, in the matter of naval twenty-one. salutes, published at Christiana, .'7 Martens, Precis, § 160. Klii- May 28, 1858. I. A Swedish bcv, § 122. RIGHT OF THE SEA. 269 all Nations, has fallen into desuetude. It was a prac- tice grounded originally on the fact, that the pubHc ships of aU Nations keep sentinel over the safe navi- gation of the High Seas, and in discharge of such duty- are entitled to ascertain the character of all vessels navigating thereupon. Merchant vessels were accord- ingly bound to strike their flag, and lower their top- sails to every vessel of war which they met. As a matter of courtesy in modern times, merchant vessels for the most part salute the pubhc vessels of other Nations by lowering and rehoisting their flag three times. Ships of war, indeed, are so far entitled to maintain guard over the safe navigation of the high seas, that they may rightfully compel a vessel, which does not exhibit any flag, to announce her National character by hoisting her colours, and for this purpose they are accustomed to fire a gun with blank cartridge as a signal to the merchant vessel to hoist her colours ; if she neglects the notice, they may fire a shotted gun across her bows, and if after that warning she dechnes to hoist her colours, a ship of war may treat her as a vessel of no certain Nation- ahty, and may compel her to bring to. The regulations with respect to salutes to be ren- dered by merchant vessels to ships of war of their own Nation, are matters of Mimicipal regulation, as well as those which relate to the special flag, which merchant vessels are entitled to carry ; but it is an offence by the Laws of the Sea for any private ship to wear the flags or ensigns pecuhar to the public ships of its Nation, luiless it has a commission from the Sovereign Power, which authorises it so to do ; for the PubHc flag of a Nation represents the Nation itself, and is privileged accordingly ; whereas the Mercantile flag of a Nation has freedom of access 270 RIGHT OF THE SEA. allowed to it upon implied conditions of a totally dif- ferent kind. Ceremonial § 184. There is an order of Maritime Ceremonial risdictionai wMcli may be distinguished from the Ceremonial waters. observed on the High Seas, and which impHes a recognition of the Empire of a Nation over the navi- gable waters within which the Ceremonial is ob- served. Every Nation has by usage a right to order a Ceremonial to be observed by the vessels of all Nations, which come within its Maritime Jurisdic- tion, in relation to its own National vessels or to the vessels of other Nations ; and likewise in regard to its own fortresses or naval arsenals ^^. Bynkershoek rests this right upon the ground that all who enter within the Maritime Jurisdiction of a State are for the time subjects of that State. This may be a cor- rect view of the condition of Public Law, under which private vessels of commerce leave the High Seas and enter the jurisdictional waters of a Foreign Power ; namely, that they become subject temporarily to the Territorial Law of that Power. With regard to such vessels, there is no necessity for any special Convention respecting matters of Maritime Ceremo- nial, as between Nations ; but with regard to pubhc vessels, which represent the Nation in its character of an Independent Power, the question is subject to different considerations. The salute on the part of a public vessel depends either iipon the Usage of Nations, or upon Treaty- engagements^'. By the Usage of Nations, sliips of war always salute a for- tress, if they pass within the limits of the Maritime 58 Bynkerslioek, Qu. Jur. Barbary States, and the Christ- Publici, L. II. 0. 21. Kliiber, ian States of Europe, the Salute § 120. Martens, Precis, § 159. was matter of arrangement as to 59 In the treaties between the the number of guns. RIGHT OP THE SEA. 271 Jurisdiction of the Nation to which the fortress belongs : they sahite in like manner the guardship of a foreign port before they enter it, and the salute is reciprocated with the same number of guns, which tends to show that the salute is not a one-sided ac- knowledgment of temporary subjection, but is a mutual recognition of National Independence on either side. Nations in former times have asserted a right to exact a salute from the pubhc ships of foreign Nations navigating narrow seas, or gulfs, as an acknowledgment of their having a right of Empire over such seas and gulfs*". Claims of this kind have given rise to long and disastrous wars, and their regulation has been repeatedly the subject of nego- ciations and treaties ; they have now happily every- where fallen into desuetude, seeing that the Cere- monial of the Salute is no longer connected with the idea of the supremacy of one Nation over another. ^° Thus Great Britain once Ligurian Sea ; Portugal over the asserted a Eight of Empire over Lusitanian Sea. Gunther, Tom. the British Channel ; Venice over II. § 21-25. the Adriatic Sea ; Genoa over the CHAPTER XL RIGHT OF LEGATION. Origin of Legations — The Person of an Ambassador sacred — The Right of Legation an Imperfect Right — Reception of an Am- bassador discretional — Conditional Reception of a Subject as a Fo- reign Minister — ^Various Orders of Diplomatic Agents — Classifica- tion of Public Ministers in the Eighteenth Century — Rule of the Congress of Vienna — Diplomatic Agents of the First Class — Diplo- matic Agents of the Second Class — Diplomatic Agents of the Third and the Fourth Class — Resident Missions — Jloldavian andWallachian Charges d' Affaires at the Ottoman Porte — Letters of Credence — Letters of Recommendation — Full Powers — Instructions — Ceremo- nial of Reception — The Sacred Character of an Ambassador — His Extra-Territoriality — Extra-Territoriality of the Ambassador's Hotel and of his Suite — The Ambassador's Jurisdiction over the personnM of the Embassy — Liability of an Ambassador to the Payment of Local Dues — Liberty of Religious Worship — Inviolability of an Am- bassador passing thi-ough the Ten-itory of a Third Power — Consuls not Diplomatic Agents. Le^^i" "i § ^ ^ 5- Nations, being independent political commu- nities not acknowledging any Political Superior, hold intercovirse with one another upon terms of equahty, and upon the presiunption of mutual good faith. But the whole body of a Nation cannot confer with the whole body of another Nation, although the interests of an Independent Political Community may from time to time require it to enter into negociations with another Independent Political Community, not merely for the purpose of forming special Conventional Relations, but hkewise with the object of maintaining its exist- ing relations under the General Law. It thus be- comes necessary that a Nation should depute one or more individual members of its Body with fall Powers RIGHT OF LEGATION. 273 on its behalf to negociate with another Nation, and it has been the practice of Nations to confide in the good faith of one another, that the Persons of their Representatives shall be in safe-keeping whilst they are within the jurisdiction of the Nation to whom they have been accredited. § 183. The word Ambassador or Embassador isThePer- derived by Wicquefort^ from the Spanish word " Em- Ambassa- biar," which signifies "to send." The Latin eqnivsi- '^°' ^'""''^■ lent was Legatus or Orator,^ and such is the title given by the Roman Emperor of the Germans and by the States General of the Netherlands in their ancient records to their Ambassador accredited to the Otto- man Porte. Much which is found in the Digest of Justinian^ in respect to Legati apphes to delegates fi-om the Provinces or Municipia of the Roman Em- pire, who were sent to the Capital with Commissions to advocate the interests of the Provincial or Muni- cipal Bodies whom they represented. But the prin- ciple of Law, regarded as a Rule of Reason promul- gated for the common good, which was appHed by the Roman Jiuists to questions which arose touching Le- gati of this order, are equally appHcable to Ambas- sadors sent from one Independent State to another, and it is worthy of note that the Romans, who re- garded foreigners as out of the pale of the Jus Civile,^ still held that the person of a foreigner was sacred, if he was invested with the representative character of his Nation. " Si quis legatum hostium pulsasset, contra 1 Wicquefort, L'Ambassadeur 4 Adversus hostem (peregri- et ses Functions, L. I. p. 3. num) seterna auctoritas esto ; 2 Bynkershoek, De Foro Le- Law of the Twelve Tables. Gra- gatorum, L.I. c. i. Tina, de Jure Natural!, Gentium 3 Dig. XL VIII. Tit. VI. et XII Tabularum. Lipsise, 1737, §7- P- 284- PART I. T 274 RIGHT OP LEGATION. Jus Gentium id commissum esse existimatur, quia sancti habentur legati."^ The Eight § 184. The Right of Legation forms the first and tionln^ principal head of the Voluntary Law of Nations in mght"^ the system of Grotius.*" This right belongs only to States which are independent, " qui summi imperii sunt compotes inter se.'' Every State, which is sui juris, is entitled to constitute a Representative and to accredit him to another State which is willing to receive him. But a Nation is not obliged to receive a Representative Envoy fi:om another Nation. Grotius holds that the Law of Nations does not require that all Ambassadors should be received, but that they are not to be excluded without just cause, and that such cause may exist either on the part of the person who sends, or the person who is sent. The instances, which Grotius' cites in illustration of the just causes of refusal, seem to resolve themselves into cases where the Nation which sends the Ambassador is considered to be an enemy, or where the person sent as Ambas- sador is supposed to be a man of bad faith, or where the Embassy itself is held not to be sent in good faith. Vattel,^ on the other hand, holds that a Sove- reign cannot without very particular reasons refuse to admit and hear the Minister of a Friendly Power or of a Power with which he is at peace ; but if there are good reasons for not admitting him into the heart of the country, the Sovereign may notify to the Minister, 5 Dig. L. Tit. VII. § 17. De L. II. c. 18. § i. Legationibus. 7 Ibid. L. II. c. 18. §3. Causa 6 Eestat veniamus ad obliga- esse potest ex eo qui mittit, ex tiones quas ipsum per se jus illud eo qui mittitur, ex eo ob quod Gentium, quod voluntarium dici- mittitur. tur, induxit ; quo in genere prse- ^ Vattel, Droit des Gens, L. cipuum est caput de Jure Legatio- IV. c. 5. § 65. num. De Jure Belli et Paois, RIGHT OF LEGATION. 275 that he will send proper persons to meet him at an appointed place on the frontier, there to receive his proposals. It then becomes the duty of the Foreign Minister to halt at the place assigned ; it is sufficient that he obtains a hearing, as that is the utmost he has a right to expect. Kliiber^ considers that no Na- tion, except under Treaty-engagement to that effect, is bound to receive the Ambassador of another Nation, except when the purpose of the Mission is either to discuss or establish a Right contested by the other Nation, and the object in view cannot be attained in any other manner, or to terminate in aii amicable way a dispute occasioned by an evident violation of Right on the part of the Nation to which the Mission is sent. Ch. De Martens^" concurs with Kliiber as to the cases in which alone a Nation is bound to receive an Embassy from another Nation. Wheaton,^^ on the other hand, holds that " no State is obhged by the Positive Law of Nations to send or receive public Ministers, although the Usage and Comity of Na- tions seem to have estabhshed a reciprocal duty in that respect. It is evident, however, that this cannot be more than an imperfect obhgation, and must be modified by the nature and importance of the rela- tions to be maintained between different States by means of Diplomatic intercourse." § 185. As a Nation is not under any perfect obh- Reception gation to receive an Ambassador, it may annex such bassador conditions as it pleases to his reception, short of any- thing affecting his personal inviolability. A Nation may refuse to receive a particular individual who has been accredited to it by another Nation, and instances 9 Kluber, Droit des Gens, I. § 6. § iy6. " Elements, Part III. c. i. '° Guide Diplomatique, Tom. § 2, T 2 discre- tional. 276 RIGHT OF LEGATION. of such refusal are by no means unfrequent.'^ It is usual in the present day in order to avoid any misun- derstanding, which might arise from the refusal of a Nation to receive the Envoy of another Nation on the ground of a personal objection, to intimate before- hand the name of the person whom it is proposed to accredit. This is an act of courtesy on the part of the Nation which makes the communication, but the practice is in itself reasonable and ought to be upheld ; for if a diplomatic Envoy is not welcome to the Sove- reign to whom he is sent, he cannot be expected to gain his confidence, and, unless he enjoys a certain amoimt of Personal consideration, his Pubhc Character alone will fail to secure him that confidence. Condi- ^ i86. A Nation may refuse to receive one of its cep"«on of own citizeus as the Kepresentative of a Foreign aSuyect Power, and in some countries it is a State-Maxim as a ±0- ' reign Mi- that a Subiect is not to be received in such a capa- city. Such was the rule of the French^' and Swedish'* Courts and hkewise of the United Provinces. '^ But in recent times two French subjects have been accre- dited to and received by the French Court as the Representative Ministers of Foreign Powers, Count Pozzo di Borgo as Minister of Russia, and the Count de Bray as Minister of Bavaria. Ch, de Martens,^* speaks of both these distinguished Diplomatists as having been naturalised in the foreign countries, which they respectively represented. This circumstance would 1* Thus the King of Sweden Maniere de nfgocier avec les refused in 1758, to receive Mr. Souverains, c. 6. p. 72. Goderich, the British Envoy, who M Codex Legum Suecite. Tit. was thereupon under the neces- de Crimin. § 7. sity of returning home. So the 15 Bynkershoek, de Foro Le- King of Sardinia refused in 1792 gatorum, c. 11. to receive M. Semouville the En- '6 Guide Diplomatique, Tom. voy from France. I. c. 1 1. § 6. 'i De Cailliercs, Traits de la nister, EIGHT OP LEGATION. 277 tend to prevent all conflict in their case between the International Privileges of a Foreign Ambassador and the Civil Liabilities of a Natural-born Subject of the French Crown, inasmuch as it is provided by the Municipal Law of France that the quahty of a French- man is lost by Naturahsation acquired in a foreign country^'. A similar rule of Law obtains in most countries with the exception of Great Britain, which does not allow a Natural born Subject to renounce or discharge his allegiance to the Crown of Great Britain and Ireland under any circumstances '^ "Nemo potest exuere patriam" is an Imperial maxim, which British tribunals must strictly uphold. It seems open to' question, if a Sovereign Power has consented to receive, as the Representative of a foreign Nation, one of its own Natural-bom Subjects without any express reservation of its Sovereign authority over him, and in a case in which such au- thority has not been divested under some general provision of its Municipal law, whether such an un- conditional reception is not a waiver of aU authority, which it might otherwise assert over hirii on the ground of his origin. Wheaton inclines to think that the unconditional reception of a Subject in the cha- racter of a Representative of a foreign Nation is a waiver of aU personal jurisdiction over him on the part of the Sovereign which has received him^*. Dr. PhiHimore^ is of opinion that if a Subject be received without any previously promulgated stipulation upon 17 La qualite de Fran5ais se tion of " territorial Sovereignty" perdra par la naturalization ac ■ was imperfectly developed, quise en pays stranger. Code Ci- ^9 Elements, Part III. c. t, vile, Art. 17. § i5- 18 Blackstone's Commentaries, ^" Commentaries, Tom. II. c, Tom. II. c. 135. This is a relic 135. of the period, when the concep- 278 RIGHT OF LEGATION. the part of his own Sovereign who receives him, he will be entitled to the full Jus legationis. Vattel ia discussing this question says, that " a Natural-born Subject of a State may, without renouncing his country for ever, become independent of it dming the whole time that he spends in the service of a foreign Prince," and the presumption is certainly in favour of such in- dependence, for the Status and Functions of a Public Minister naturally reqiiire, that he should depend only on his Master or the Prince who has intrusted him with the management of his affairs. Whenever, therefore, there does not exist any circumstance which furnishes a proof or indication to the contrary, a Foreign Minister, though antecedently a Subject of the State to which he is accredited, is reputed to be absolutely independent of it dinring the whole time of his commission. If his original Sovereign does not choose to allow him such independence within his dominions, he may refuse to admit him in the cha- racter of a Foreign Minister^. Various § 1 87. In the early intercourse of European Nations Diplomatic 8- distinction of title amongst Diplomatic Agents was Agents, unknown. They were indifferently styled in Latm documents Legati or Oratores, and in more modern records they are designated Ambassadeurs, Ambascia- dori, or Embascadores, respectively in French, Italian, and Spanish records. Grotius treats of Legati under a single head. The vanity of Princes in regard to Cere- monial on the one hand, and motives of parsimony on the other, contributed to introduce a distinction in or about the 1 5th Centiu"y between Diplomatic Agents who shoxild represent the personal dignity as well as the independent rights of their Sovereign, and diplo- matic agents who should represent the affairs alone -" Droit dcs Gens, L. IV. c. 8. § 112. RIGHT OP LEGATION. 279 of the Sovereign who accredited them. Louis XI of France is said to have been the first of the European Sovereigns, who accredited to another Sovereign Power a Pubhc Minister to represent him in the con- duct of his affairs only, and not in respect of his per- sonal dignity ; and his example led the way to the introduction of two distinct classes of diplomatic Agents, a higher class representing the dignity of the person of their Constituent as well as his affairs, and a lower class simply representing him in the transaction of his affairs. At the time when Vattel wrote his work on the Law of Nations a third degree of Representation had become estabhshed by Custom, and Vattel divides ac- cordingly the Diplomatic Body into Ambassadors, Envoys, and Residents. In the Treaty of Peace con- cluded at Passarovitz^ between the Emperor Charles YI and the Sultan Ahmed III (anno 1718) we find mention of three classes of Pubhc Ministers as dis- tinguished from the simple Agent ^\ the latter of whom, if his functions were not commercial, was in- cluded in the protection of the same Treaty-stipiila- tioDS which guaranteed the personal safety of other Pubhc Ministers. It is not easy to ascertain the precise line of de- marcation, which distuiguished the functions of the Resident from those of the Envoy, for the former class of Diplomatic Agents were more frequently than other- wise entrusted with the negociation of affairs of State 2° Ministri porro Csesarei, sive same time and place between the Oratoris, sive Ablegati, sive Ee- same Powers, Agents are men- sidentis, sive Agentis munere tioned in the list of Officials con- i'ungantur. Schmauss, Corp. Jur. nected with Commerce : pp.riter Gent. Academ. p. 1703. Consules,Vice-Consules, Agentes, In the Treaty of Commerce Factores, Interpretes. Schmauss, !l!i< 1 Navigation concluded at the p. 1717- 280 EIGHT OF LEGATION, equally as the Envoy ; but the ofl&ce of Resident seems to have been held in less honour and consider- ation than that of Envoy, as it was frequently dele- gated to a subject of the State, to which the Resident was accredited. The title of Resident appears also to have been sometimes conferred upon persons who were only entrusted with the management of the private affairs of a Sovereign. The functions of the simple Agent on the other hand seem to have been originally very indefinite. Yattel speaks of him as having been formerly a kind of pubhc Minister ; but the title of Agent in Vattel's time had come in practice to be confined to persons appointed by Princes exclusively to transact their private affairs, and who were not unfrequently subjects of the Country where they re- sided. Such Agents are not the bearers of Letters of Credence properly speaking, and they are conse- quently not Pubhc Ministers, nor under the protec- tion of the Law of Nations, as such. Residents also appear sometimes not to have been furnished with Letters of Credence, and under such circumstances the title alone of Resident was no protection to them. This may serve as an explanation of the fact alluded to by Bynkershoek^^, that Wicquefort, who was a native of Amsterdam, was in the military service of the States General at the time that he was appointed the Resident of the Duke of Lunebiu-g at the Hague. Wicquefort, notwithstanding liis office of Resident, was cited before a Dutch Court and condemned to imprisonment for hfe. Bynkershoek holds that the office of Resident did not, under the Law of Nations, exempt Wicquefort from the jm-isdiction of the Dvitch Courts. The Office of Resident, as exercised m this case, seems to have differed very little from the office 2- De Foro Legatorum, c. ii. RIGHT OF LEGATION. 281 of a Consul or Commercial Agent, for VatteP^ speaks of " Dutch Merchants who obtain the title of Resi- dents of certain foreign Princes, and nevertheless con- tinue to carry on their commerce, thereby sufficiently denoting that they remain subjects of the States General." f i88. The Law of Nations, antecedently to the ciassifica- institution of permanent Foreign Missions at the dif- pubiio Mi- ferent European Courts, did not recognise any dis-"^g*®gj™ tinction of Class or Order amongst Public Ministers. Century. Each Minister or Envoy received such special consi- deration as the nature of his Mission entitled him to. But with the introduction of Resident Ministers, a question of Ceremonial and Precedence arose amongst the Representatives of Foreign Sovereigns at each Court. The Ambassador was received with higher honours, and took precedence of the Envoy. The Envoy, on the other hand, had precedence of the Resident ; the Resident in lais turn, being a Public ]\Iinister, took precedence of the Agent, whose duties were confined to the private affairs of his Sovereign. Such and so many were the grades of the diplomatic hierarchy at the commencement of the Eighteenth Century. The Agent has for the most part disap- peared, and is replaced by the Charge d' Affaires, but the French mission in Spain still retains amongst the personnel of its estabhshment an Agent of the French Nation, who is charged with the conduct of the affairs of liis countrymen, which are of a secondary order ^*. In the corurse of the Eighteenth Century a practice was introduced of accrediting public Ministers with- out any particular designation of rank or character. =^3 Vattel, L. IV. c. 8. § ii2. M Ch. de Martens, Guide Diplomatique, Tom. I. § 1 2. 282 EIGHT OF LEGATION. VatteP^ states that this expedient was adopted to avoid dispute about precedence. Custom had at such time estabhshed a particular Ceremonial for the Ambassador, the Envoy, and the Resident, but such custom did not altogether prevent disputes between the Ministers of different Princes accredited to the same Court, as to their respective rank and prece- dence ; more particularly when they happened to belong to the same Class or Order. Thus the Ambas- sador of an Emperor might claim to take precedence of the Ambassador of a King, by reason of the pre- cedence which the Emperor himself claimed over aU Kings. A King, on the other hand, might be indis- posed to allow his Ambassador to concede precedence to the Ambassador of an Emperor, yet he might be equally indisposed to incur the risk of hostilities with his Master. Under such circumstances by accrediting his own Minister under the simple and indeterminate title of Minister, he could allow him to concede pre- cedence to the Ambassador of an Emperor without compromising the dignity of his Crown. We thus find the title of Minister Plenipoten- tiary introduced, such Minister Plenipotentiary taking rank immediately after an Ambassador. The ofi&ce of Minister Plenipotentiary came gradually to be united with that of Envoy Extraordinary, and was placed in the same rank. Ministers Resident and Ministers Charges d'Afiaires shortly afterwards completed the Catalogue, which we find in general acceptance at the commencement of the Nineteenth Century. Euieofthe ^ 189. The precisc rank and precedence howovcr of Vienna!^" Diplomatic Agents was not a matter universally agreed upon amongst the Nations of Europe, imtil the Powers assembled in Congress at Yienna came to 25 Droit des Gens, L. IV. § 74. EIGHT OF LEGATION. 283 a common understanding on the subject, and esta- blished Three Classes^*' : 1. Ambassadors, Legates or Nuncios. 2. Envoys, Ministers, and others accredited to Sovereigns, (auprfes des Souverains.) 3. Charges d'Affaires accredited to Ministers of Foreign Affairs. This classification proceeded upon a very intelligible distinction between the functions exercised by each Class. The Ambassador is accredited by a Sovereign to a Sovereign, and represents the personal dignity of his Constituent, as weU as the public affairs of the Nation over which his Constituent mles. The Envoy or Minister is similarly accredited by a Sove- reign to a Sovereign, but he represents only the af- fairs of the Nation over which his Constituent rules. The Charge d'Affaires is not accredited by the Sove- reign to the Sovereign, but is accredited by the Minister of Foreign Affairs to the Minister of Foreign Affairs. At the subsequent Congress of Aix-la-Chapelle, (21 Nov. 1818,) the five Great Powers there assembled agreed to institute a Class intermediate between the Envoy and the Charg6 d'Affaires, to which they gave the title of Ministers Resident accredited to Sovereigns. The distmction thus introduced was not very logical, seeing that the extent of the second Class remained the same, and that the second is sufficiently large to include the third. The reasons for the introduction of this inter- mediate Class may be traced to the unwillingness of the Great Continental Powers to allow their Minis- ters of the Second Class to give way to the Ministers ^fi Reglement sur le rang entre annexed to the Final Act of the les Agens Diplomatiques, being Congress. Martens, N. R II. the seventeenth of the documents p. 449. 284 RIGHT OF LEGATION. of the same Class who represented the Minor Powers of Germany, and who might be entitled by Seniority, agreeably to the regulations of the Congress of Vienna, to take precedence of the Envoys of the Great Powers. The introduction of a Third Class under the title of Ministers Resident, accredited to Sovereigns, enabled the Minor Powers to avoid aU contest with the Great Powers, and at the same time to have the services of Diplomatic Agents who were Public Ministers properly speaking. Diplomatic § ipo. Diplomatic Agents of the first class alone thrFirst enjoy by the Custom of Nations, as well as under the Class. regulations of the Congress of Vienna, the full attri- butes of the Representative Character. They are accordingly entitled to the same honours as would be paid to the person of the Sovereign, whom they respectively represent. The precise nature of the Ceremonial, to which Ambassadors are entitled, de- pends upon the usage of the particular State to which they are accredited. It was provided by the fifth of the Rules adopted at the Congress of Vienna, that each State should settle an uniform mode of reception for Diplomatic Agents of each Class, so that the discretion of each State is left imfettered, pro- vided it is not guilty of partiality towards the Repre- sentative of any one State. The third of the same rules provided, that Diplomatic Agents on an extra- ordinary Mission, should not by reason thereof (a ce titre) enjoy any superiority of rank ; so that the Ambassador Extraordinary can claim no privilege or precedence over the Ordinary Ambassador. The Papal Nuncio^'' at present takes his place amongst ^7 The Ambassadors of the former times to cede precedence Koman Catholic Princes, includ- to the Papal Nuncio, but those ing the Roman Emperor of the of Russia and the Ottoman Porte Germans, were accustomed in did not recognise any such rule. EIGHT OF LEGATION. 285 the Ambassadors in the order of Seniority, as it is provided by the fourth of the same rules, that Diplo- matic Agents of the same Class shall take rank and precedence according to the date of the Official notifi- cation of their arrival at the Court, to which they are accredited. The practice of accrediting Diplomatic Agents of the first Class is confined to the States which are entitled to Royal Honours. Such Honours were formerly enjoyed exclusively by Monarchical States, and the Eepubhcs of Venice and the United Nether- lands were for some time exceptional instances of such honours being shared by States not having a Monarchical form of Government ; at the same time, the Ambassadors of these powerful Republics were accustomed to yield precedence to the Represen- tatives of Crowned Heads ^'. The Grand Duchies of Germany, the 'Electorate of Hesse, the Swiss and Germanic Confederations, are European States enti- tled to Royal Honours, and they are accordingly entitled to accredit Diplomatic Agents of the first Class. The rank and precedence of Sovereign Princes are not determined by any Conventional rule analo- gous to that which determines the rank and prece- dence of their Diplomatic Agents ; but amongst Sovereign Princes entitled to Royal Honours, the custom prevails for such, as have not the title of Emperor or King, to concede precedence on all occa- sions to Emperors and Kings. There exist in Europe, in the present day, several Independent Princes who do not enjoy Royal Honours ; such, for instance, as the Members of the Germanic Confederation below the rank of Grand Duke or Elector. These yield i8 Vattel, Droit des Gens, L, II. § 38. Kluber, § 91. 286 EIGHT OF LEGATION. precedence to Princes entitled to Eoyal Honours. There are also European States which enjoy an Inde- pendence modified by Treaties, such as Monaco and Kniphausen. Such States rank after all the States which enjoy an absolute Independence, and under the provisions of the Conventions, by which their Independence is modified, are represented for aU poli- tical piuposes by the Diplomatic Agents of the Pro- tecting Power. The rules of precedence, which are observed amongst Independent Sovereign Powers, rest upon Usage and general acquiescence. The question of determining the relative rank of Inde- pendent States by a positive Compact, was taken into consideration at the Congress of Vienna ; but diffi- culties having arisen in regard to the rank to be assigned to the Great Repubhcs^^, the farther discus- sion of the question was adjourned indefinitely, and the Congress limited its action to the regulation of the rank and precedence of the Diplomatic Agents of Independent States^". Diplomatic § T91. The sccond Order of Diplomatic Agents in- th?seoond cludcs Euvoys, Euvoys Extraordinary, Ministers Ple- Olass. 29 The title of courtesy of a Princes. Thus the titles of the Great Republic, such as Venice Very Christian or Most Christ- and Genoa, was Serenissiina Res- ian King, and Firstborn Son of puhlica. A similar title is in the Church, is given to the Kings the present day assigned to Con- of France ; the King of Spain federations. Thus the Germanic has been styled since 1496, the Confederation is addressed by Catholic King ; the Kings of the title of "the Most Serene," England, since 1591, Defenders and Diplomatic Agents are ac- of the Faith ; the King of Po- credited to the Most Serene laud, the Orthodox King ; the Sovereign Princes and Free Ci- King of Portugal, since 1748, the ties of the Germanic Confedera- Very Faithful King ; the King tion. Titles of a Eeligious cha- of Hungary, since 1758, the Apo- racter originally conferred by stolic King, the Holy See, are still used in 3° Kliiber, Droit des Gens, addressing certain Sovereign § 94. EIGHT OF LEGATION. 287 nipotentiary, and Internuncios^'. Diplomatic Agents of the second Class are not clothed with the peculiar character which attaches to diplomatic Agents of the first Class, and which is derived from the dignity of the Sovereign whom they represent. Accordingly, they cannot demand of right a personal audience of the Sovereign to whom they are accredited. Such a Right is the distinctive privilege of a Diplomatic Agent of the first Class. In aU other matters which concern him, as the Mandatary of his Nation, a diplomatic agent of the second Class does not differ in any ma- terial respect from a Diplomatic Agent of the first Class. There was a period when the etiquette of European Courts confined the privilege of personal intercourse with the Sovereign, at whose Court he was accredited, to an Ambassador as distinguished from an Envoy, but the usage of the present day authorises Diplomatic Agents of the second Class to confer personally on suitable occasions with the Sove- reign to whom they are accredited. The privilege of personal intercourse with the Sovereign in the case of an Ambassador was not at any time con- sidered to give to verbal conferences with the Sovereign the character of Official acts binding upon his government. International Negociations were then, as now, conducted through a Minister of Foreign Afiairs, and it was through him alone that binding Official acts could be concluded by an Ambas- sador. In the present day the observation is still more generally appHcable, as wherever the Monarchical 3 ' The Austrian Internuncio of Vienna is now observed by the at Constantinople took prece- Porte. Ch. de Martens, Guide dence formerly, under treaties Diplomatique, c. lo. § 65. Comte with the Ottoman Porte, of all du Garden, Traitd Complet de Ministers of the Second Order. Diplomatic, L. 5. § 3. The regulation of the Congress 288 RIGHT OF LEGATION. form of Government is combined with Representative institutions, the Sovereign can only bind the Nation tlirough the agency of a Responsible Minister ^^^ Diplomatic §192. The third Order of Diplomatic Agents com- the TWrd prises Ministers, Resident Ministers, Residents, Min- Fotrth inters Charges d'Affaires. The distinction between Class. the Minister Charg6 d'Affaires, and the simple Charge d' Affaires, who ranks in the fourth Class of diplomatic Agents, consists in the circiunstance that the former is accredited by the Sovereign to the Sovereign as Minister, the title of Minister being engrafted upon that of Charge d'Affaires ^^. Martens cites as an early example of this particular species of Diplomatic Agent, the Minister Charge d'Affaires of the King of Sweden accredited to the Padischah of the Ottomans in 1784^^. The fourth Order consists of Diplomatic Agents accredited by the Minister of Foreign Affairs to the Minister of Foreign Affairs. These are either sent out originally with express Credentials from the Minister of Foreign Affairs as Charges d'Affaires, or have been sent out originally furnished with a Com- mission from the Sovereign, as Secretaries of Embassy or Secretaries of Legation ; and in the latter case they are orally invested with the Charge of the Embassy or Legation by the Ambassador or Minister himself to be exercised during his absence from the seat of his mission. They are accordingly announced in this character by him before his departure to the Minister of Foreign Affairs of the Court, to wliich he is accre- dited. This fourth Order of Diplomatic Agent is not entitled to confer with the Chief of the State, but 3* Envoys as distinguished reign are necessary to give to the from Ambassadors, (Oratores or ChargI d'Affaires the character Legati,) are designated in Latin, of Minister ad interim. Inviati or Ahlegati. 34 Precis du Droit des Gens, 33 Credentials from the Sove- T. ii. § 194. RIGHT OF LEGATION. 289 only with tlie Minister of Foreign Affairs to wliom he is accredited, and this rule is maintained in the case of Republics, as well as of Monarchical States. Wheaton cites an instance from the Archives of the United States, ia which the Secretary of State for Foreign Affairs notified formally to the Charge d' Af- faires of an European Power of the highest rank, that "he could hold oificial intercourse only with a De- partment of State ; that he had no right to converse with the President on matters of business, and might consider it a liberal courtesy, if he was presented to him at all."^^ Consuls, as such, are Commercial not Political Agents, and accordingly do not belong to any of the four orders of Diplomatic Agents, but the office of Charge d' Affaires is sometimes combined with that of Consiol-General in the same individual, who has thus the character of a Diplomatic Agent engrafted upon the Commercial character of Consul § 193. Every Nation may determine for itself in Eesident what character it will accredit a Diplomatic Agent, whether it will confer upon him, by its Credentials, the full Representative character which belongs to the Ambassador or highest class of Diplomatic Agent, or will only confer upon him limited rank. But this absolute discretion upon the part of a Nation to ac- credit its Diplomatic Agents under any character which it may choose, is limited to occasional and tem- porary Missions, as distingmshed from Missions per- sonally resident at a Foreign Court. No Nation can insist as a matter of Right, that a Diplomatic Agent on its behalf shall be permanently entertained by an- other Nation. Grotius^" held that Permanent Lega- 35 Elements, p. III. c. i. § 6. receives Ambassadors and other The President, under the Con- public Ministers, stitution of the United States, 3'' Optimo autem jure rejici PART I. U 290 RIGHT OF LEGATION. tions (assiduse legationes) might be with right excluded by all Nations, but the practice to maintain Resident Legations at Foreign Courts had in the course of the following century become so general amongst the Eu- ropean Nations, that Vattel,^' whilst holding that a Nation is not under an obligation to suffer at all times the residence of a Foreign Minister, is of opinion, that any Nation, which refuses to entertain a Resident Minister from a Foreign Power, must allege very good reasons for its conduct in this respect, if it wishes to avoid giving offence. Such reasons may arise from particular circumstances, but there are also ordinary reasons which may be always in force, such as relate to the Constitution of a Government and the State of a Nation. In the absence however of any such reason, the Usage of two cent\iries may now be said to justify the Nations of Europe in relying upon the Comity of one another to entertain permanently their duly accredited Diplomatic Agents. As the same Usage, however, requires in regard to Resident Missions, that Nations should accredit and receive Diplomatic Agents of equal rank, the special rank of the Diplomatic Agents to be accredited and enter- tained on either side must be a subject of mutual agreement between States. The practice of accredit- ing and entertaining Ministers of the first Class has been hitherto confined to Crowned Heads, Sovereign Princes enjoying Royal Honoiurs, and the Great Re- publics. There is no rule which prevents a Nation accrediting several Diplomatic Agents of equal or unequal rank to the same Nation or the same person possunt, quae nunc in usu sunt cui illse ignoratse. — De Jure B et legationes assiduse, quibus quam P. L. II. c. i8. §3. non sit opus, docet mos antiquus, 37 Droit des Gens, L. 4. § 66. RIGHT Of LEGATION, 291 as its Diplomatic Agent to several Nations '^ On the other hand, the same person may be accredited to the same Court by one Sovereign Prince as his Ambas- sador, and by another Sovereign Prince as his Envoy Extraordinary, or by both Princes as their Envoy Extraordinary. Thus the Austrian Ambassador used frequently to have separate Credentials to Foreign Coiirts, as Envoy Extraordinary of the Duke of Parma. The Prussian Minister in the present day has for the most part Credentials from the King of Prussia and from the Grand Duke of Saxe. § 194. Agents for the private affairs of Princes, and Moldavian such as have only the title of JR.esident or Counsellor laohian of Legation or Agent, are not members of the Diplo- d'Afeires matic Body, in other words, they do not represent ^^^'^p^**"' their respective Nations for Pohtical purposes, and they are not entitled to any Diplomatic privilege or immunity. To this class belong the Charges d' Affaires of the Hospodars of Moldavia and Walachia, who reside at the Ottoman Porte, and for whom the Em- peror of Russia stipulated by the sixteenth Article of the Treaty of Kutschauk Kainardii, (anno 1774'",) that they should be treated by the Porte with kindness, and notwithstanding their little importance, should be considered as persons so far enjoying the Right of Nations, as to be safe from personal violence. This is an exceptional case founded altogether on the pro- visions of a special Convention, whereby the Porte agreed to restrict the exercise of its Rights of Sove- 3** It is not an unusual prac- affaires concernant les dites Prin- tice for Non-Germanic Powers cipalitSs, et seront traitds avec to accredit one and the same bonte de la Porte, et non obstant Minister to divers States of the leur peu d'importance consideres Germanic Confederation. comme personnes jouissant du 39 Marten's Eecueil, Tom. II. Droit des Gens, c'e^t S, dire k p. 305. Lesquels vielleront aux I'abri de toute violence. U 2 Credence, 292 RIGHT OF LEGATION. reignty over certain of its own Subjects, whilst charged with the functions of Agent on behalf of the Hospo- dars at the central seat of the Ottoman Government. But this Treaty-engagement has not conferred the Diplomatic Character on these Charges d' Affaires, nor are they received into the body of Diplomatic Agents resident at the Ottoman Porte^. tetters of § 195- A Public Minister, who is sent to represent his Sovereign at the Court of another Sovereign, ought to be expressly authorised for that purpose, and the Sovereign to whom the mission of the Mi- nister is addressed, ought to be duly certified of his authority to present himself as the Representative of his Sovereign. Every PubHc Minister is accordingly famished by the Sovereign or Chief of the State, which delegates him, with Letters of Credence, (Literse fidei sive credentials,) which are addressed to the Sove- reign or Chief of the State in the case of States which are under a permanent Sovereign or chief Magistrate ; but in the case of Unions or Confederations of States, which are for the most part under a temporary Pre- sident, the letters of Credence are addressed to the States themselves. The reason for this distinction of practice in the case of Unions or Confederations of States is to be found in the circumstance, that as the President of an Union or Confederation is a temporary Officer, if the Credentials of Foreign Min- 4° These Charges d'AiFaires Administration by an Agent, are properly speaking Agents for (termed in the Turkish language, the affairs of the Principalities, Kayson Kehagasi,) and as the transacting business with the lives of such agents wei-e always: Home Department at Constanti- in jeopardy, if a political crisis nople. It has been the practice arose, a stipulation for the safe in the Ottoman Empire for the conduct of the Agents of the two Governors of Provinces to be re- Principalities was introduced into presented at the Central Seat of the Treaty of Kainardji. RIGHT OP LEGATION. 293 isters were addressed to him, they would have to be renewed as often as a new President was appointed, and serious prejudice to both Nations might result from the frequent interruption of Diplomatic inter- course. The Letters of Credence set forth the name and special character of the Diplomatic Agent, and the general object of his Mission, and request that he may be received with favour, and have full faith given to what he says on behalf of his Sovereign. They are invariably sealed up, and were formerly secured with sOken cord as well as with wax. The modern prac- tice is to enclose the Letters in a sealed envelope. Their form varies with the usage of each Nation. They are for the mc«t part in the form of a Cabinet Letter, {Lettre de Cabinet,) written in the first person and addressed by the Sovereign, who accredits the Minister, to the Sovereign to whom he is accredited, commenciag with "My dear Brother" or "My dear Sister," and ending with an affectionate subscription and signature under the hand of the Sovereign. These Letters are sometimes styled Lettres de Cachet, being sealed up with the Cachet seal*\ which is the smallest seal of the Minister of Foreign A£fe,irs. The Letters of Cre- dence of some Sovereigns, as for instance of the Kings of Prussia and Denmark, are cotmtersigned by the Minister of Foreign Affairs. It is not however the practice in Great Britain for the Minister of Foreign Affairs to countersign Letters of Credence furnished to British Diplomatic Agents. In cases where a more formal ceremony is intended to be observed, the Let- ters of Credence are in the form of a Lettre de Chan- cellerie, wliich is drawn up in the third person, and 4' When they are enclosed in an envelope, the envelope is sealed up with the Cachet Seal. 294 felGHT OF LEGATION. in which all the titles of both Sovereigns or both States are set forth at length. A Lettre de Chancel- lerie is generally used when a Sovereign Prince ac- credits a Diplomatic Agent to a RepubHc or a Con- federation of States, or when a Christian Power accre- dits a Public Minister to a Mahommedan Prince. Thus Great Britain accredits her Ministers to the United States of America, and to the Emperor of Morocco, in a Lettre de Chancellerie, whilst she accredits her Ambassador to the Emperor of Austria in a Lettre de Cabinet. The Lettre de Chancellerie is written upon a sheet of foolscap paper, and in the case of British Credentials, it bears upon its face the impression of the small signet of the Foreign Secretary stamped upon a wafer *^. Great Britain has, of late, set examples to other States of simpUfying, as much as possible, the Ceremonial of Credentials, but se- veral of the great European Powers, Russia for in- stance, still continue to employ the Lettre de Chancel- lerie for the Credentials of her Diplomatic Agents of the three first Orders. In the case of a Diplomatic Agent of the fourth Order, his Letters of Credence are addressed by the Chief of the Department of Fo- reign Affairs in his own country, to the Chief of the corresponding Department in the country to which he is accredited. Where a Foreign Minister is accre- dited to an Emperor or a King, it is usual to furnish him with Letters of Credence of identical import, mutatis mutandis, addressed to the Consort of the King, if she has the title and rank of Empress or 42 The British Foreign Secre- and a large seal for wafers, called tary has three Seals, a small Ca- the large Signet, for the Com- chet Seal for wax, used for Let- missions of Secretaries of Em- ires de Cabinet, an intermediate bassy or Legation, and of Con- seal for wafers, called the small suls. Signet, for Lettres de Chancellerie, RIGHT OF LEGATION. 295 Queen '^ ; fbut if he is accredited to a reigning Empress or Queen, it is not usual to furnish him with addi- tional Letters of Credence addressed to the Prince Consort. It would appear to be the practice of some Governments to furnish their Public Ministers with Letters of Recommendation in addition to their Letters Letters of of Credence, addressed by the Sovereign himself, or mend™tion. by his Minister of Foreign Affairs, to distinguished pubhc Functionaries, or to Members of the Govern- ment of the State to which the Ministers are accre- dited. Of this kind were the Letters of Recom- mendation, with which the Foreign Ministers, accre- dited by the Christian Powers of Europe to the Ottoman Porte, were formerly furnished, and which were addressed to the Grand Vizier and to the Reis Effendi, in other words to the Ottoman Prime Min- ister and to the Ottoman Secretary for Foreign Affairs. The practice of fm-nishing their Diplomatic Agents, who are accredited to the Porte, with Letters of Re- commendation, is stiU observed by some of the Eu- ropean Powers, but Great Britain has discontinued them, and she furnishes her Ambassador to the Porte in the present day only with Letters of Credence, drawn up in the form of a Lettre de Cabinet, and addressed by the Sovereign in the first person to the Padischah. Great Britain, in so modifying her prac- tice, has been careful to treat the Padischah of the Ottomans with the same degree of respect which she 43 In States where Morganatic conferred upon her. Thus Fre- marriages, or marriages of the derick IV. of Denmark, con- Left Hand are recognised as tracked a left-handed marriage lawful varieties of the matrimo- with a nol>le Danish Lady during nial contract, the wife of the Em- the lifetime of his first Queen, and peror or King does not necessa- upon the death of the Queen, tlie rily bear the title and rank of King elevated his left-handed Empreps or Queen, unless that wife to the dignity of Queen, tide and rank have been directly 296 RIGHT OF LEGATION. shows to the Emperor of all the Russias. The Pa- dischah, on the other hand, accredits his Ambassador to Great Britain in a Lettre de Chancellerie, to which his Autograph Signature is subscribed, and upon which the mark of a Cachet seal is impressed in ink. It would thus appear that Reciprocity between Na- tions is not required in the ceremonial of accrediting their Diplomatic Agents. Each Nation has its own practice, and whenever a simplification of form has been adopted by any Nation, such simphiication has been held not to imply any diminution of respect towards the Sovereign to whom the Letters of Cre- dence are addressed. The Letters of Credence are the document which the Public Minister presents upon his formal reception by the Sovereign to whom he is accredited, but he cannot require to be solemnly received for the pur- pose of presenting his Credentials before he has deH- vered an authentic copy of them to the Minister or Secretary of State for Foreign Affairs, in order that he may satisfy himself that they are fit and proper Letters for his Sovereign to receive. Letters of Cre- dence addressed to a Sovereign Prince must be pre- sented of Right to the Sovereign himself even during his minority, and although the Government of the State is entrusted to a Regent. Such was the prac- tice in France diuing the minority of Louis XV. and the Regency of the Duke of Orleans, and such was in very recent time the practice observed in Spain** during the minority of Queen Maria Isabella and the Regency of the Duke of Yittoria. Letters of Cre- dence expire upon the demise either of the Chief of the State by whom they were farnished, or of the Chief of the State to whom they are addressed. 44 Ch. de Martens, Guide Diplomatique, Tom. I. § i8. RIGHT or LEGATION. 297 Fresh Letters of Credence must be presented, if a Public Minister be promoted by his Sovereign from a lower to a higher Order, as for instance, if he shoTild be raised from the rank of Envoy Extraordi- nary and Minister Plenipotentiary to that of Ambas- sador. ^196. Although the Letters of Credence, which are FuU presented by a Diplomatic Agent accredited to reside at a Foreign Court, imply General Full Powers on his part to transact aU political business on behalf of his Constituent, it is usual nevertheless, if any Special Treaty or Convention is to be negociated, to furnish the Diplomatic Agent with a Mandate or Instrument of Full Powers to negociate and conclude the par- ticular Treaty or Convention. The Mandate (Manda- tum Procuratorium), or, as it is commonly termed, the Full Powers (les pleins pouvoirs), are always set forth in Letters Patent of the Sovereign, which are signed and sealed according to the form which prevails in each State in regard to Letters Patent. The full Powers granted by European Sovereigns are for the most part signed by the Sovereign, and countersigned by the Minister or Secretary of State for Foreign Affairs. A Mandate of Full Powers may be a Mandate ad hoc, limited to the particular business of the negocia- tion or treaty (pouvoirs speciaux,) or it may be a Man- date to treat generally with the Ministers of all Powers and States within the dominion of the Sove- reign to whom the Minister is accredited (pouvoirs generaux), or it may extend still further, and may be a Mandate to treat with all Powers or States (pouvoirs Ulimites). Limited Full Powers are generally given to a Diplomatic Agent where the object of the negociation is a particular treaty with a particular Power. General FuE Powers on the other hand are 298 RIGHT OP LEGATION. given, whenever there is a Congress of Ministers Ple- nipotentiary nominated by various States, and when it may be uncertain what Powers or States may take part in the Congress. UnHmited Full Powers are more rare, and are only given when it is uncertain not only what Powers and States may take part in a Congress, but where such Congress may be held or adjourned to, and what matters may come under discussion and negociation. Thus unlimited Full Powers were given by the Queen of England to the British Diplomatic Agents, who concluded the negociations on behalf of the British Crown at the Congress of Paris in 1856. M. de Garden** says cor- rectly that such Full Powers are extremely rare. Publicists seem to speak of such Full Powers as not in use in the present day. Thus Ch. de Martens** says, " II n'est plus d'usage de munir un Ministre du Plein Pouvoir, qui I'autorisait a traiter avec toutes les Puissances, et que Ton appelait * actus ad omnes popu- los. '" Dr. Phmimore,*'' on the other hand, constrvies this Latin phrase as equivalent to " Letters accredit- ing the bearer to all Courts." If this interpretation be correct, there is no doubt that such Letters of Cre- dence are not in present use, but it seems doubtfid from the instances cited by Ch. de Martens whether the Latin phrase is to be interpreted in such a sense, inasmuch as Ch. de Martens aUudes, in illustration of his remark upon the disuse of such FuU Powers, to a Full Power granted by Queen Anne of England to her Secretary d'Ayrest, then British Resident at the Hague, whereby he was authorised to treat with the Ministers of all Princes and States interested in the negociations of the Peace of Utrecht*'. Such a Full 45 Traite Complet de Diplo- 47 Commentaries, XI. § 230. matie, T. II. p. 48. ■i'* Lamberty, Memoires, T. 4^" Guide Diplomatique, I. c. 4. VIII. p. 742. §19- EIGHT OF LEGATION. 299 Power is evidently not more extensive than the Full Powers which are in vise, when occasion requires them, in the present day, and which are quite distinct from Eoving Letters of Credence. Thus Full Powers were given by the First Consul Napoleon to General Au- gereau to make peace with the Sovereign Princes of Germany, and to treat with the States of the Ger- manic Empire. By virtue of such Full Powers Gene- ral Augereau entered into separate negociations and concluded separate Treaties with individual Princes and States of that Empire, according as he found any of them favourably disposed to his proposals of Alliance or of Neutrahty.^ § 197. Every Diplomatic Agent is furnished by his instiuo- own Government with Instructions as to the object of '™^" his Mission and for the guidance of his conduct. These Instructions are sometimes given orally, but more generally in writing, so that the Agent may be able to refer to them from time to time as occasion may require. The Instructions, being for his own guidance, ought to be kept secret by him, unless he is expressly authorised by his Government to communi- cate them in part, or in extenso. The duty of every Diplomatic Agent is to conform his conduct to his Instructions, unless it should happen from unforeseen circumstances, that a strict comphance with them would defeat the object of his Mission, or otherwise lead to consequences prejudicial to the interest of his Constituent. Under such circumstances it may be- come his duty to suspend the execution of his In- structions, or even to deviate from them, provided he does not engage his Government to any measure op- posed to its general Policy or conflicting with the 49 Conventions entre la Kepublique Frangaise et divers Princes d'Allemagne (14 Sep''''-, 1800.) Martens, Eecueil, VII. p. 112. 300 RIGHT OF LEGATION. special object of the Negociations, with which he has been instructed. If questions should arise upon which a Pubhc Minister is without Instructions, it is his duty to refer them to his Government, in other words to entertain aU propositions or overtures a/i referen- dum. If the case is urgent, and the time does not admit of referring to his Government for Instructions, it is his duty either to reject aU overtures absolutely, or, if he entertains them, to accept them explicitly suh spe rati. This latter form, however, has now nearly passed out of use, since there is for the most part an express provision in every Treaty which is concluded by Diplomatic Agents, that the Ratifications of the Contracting Powers shall be exchanged within a cer- tain number of days, it being thereby imphed that the Treaty-Engagements do not acquire full force and effect, unless sanctioned by the Ratifications of the Parties upon whom the fulfilment of their provisions will devolve. The practice of inserting in the body of a Treaty a provision as to Ratification has been adopted ex majori cautela to prevent any dispute as to the necessity of Ratification, as Pubhcists are by no means of accord on this subject. Grotius^" and PuffendorP^ hold, that the act of a Diplomatic Agent, if it is within the scope of his FuU Powers, binds his Constituent abso- lutely upon the analogy of the Roman Law as to the .Contract of Mandatum. Their doctrine is upheld by VatteP^ and Kliiber^l Byokershoek^, on the other 5° De Jm-e B. et P. L. II. c. 54 Mandata ilia Generalia, ut II. § 12. nunc sunt Gentium mores, nihil 5' Law of Nature and of Na- fere, ut dixi, prsebent, quam po- tions, L. III. c. 9. § 2. testatem agendi, minime vero 5^ Droit des Gens, L. II. c. 1 2. agendi ex ai-bitrio contra ipsa § 156. Principis mandata secretiora. 53 Droit des Gens, Partie II. Qusest. Jur. Publici, L. II. c. 7. T. II. § 142. EIGHT OF LEGATION. 301 hand, maintains that the Usage of Nations requires a Ratification from the Sovereign in order to give validity to a treaty concluded by his Minister ia every instance, except in the very rare case where the entire Instructions are contained in Special Full Powers, and that the analogy of the Roman Law is not to be considered an unerring guide in this matter, as the Practice of Nations has intervened and has excepted International Compacts in this respect from the Rules of Civil Jurisprudence. The reason of this apparent anomaly of a Constituent not being bound by the act of a duly authorised Agent, will be more fully discussed in the next following chapter upon the Right of Treaties : it may be sufficient for the present moment to observe, that for the sake of the business itself of negociating successfully, it has become the Practice of Nations to give as extensive and general Full Powers as possible to Diplomatic Agents, even to the extent of a promise to ratify, in order that they may be able to do and to agree to all that their Constituents could do or agree to. The exercise, however, of these Powers is in practice understood to be regulated by Secret Instructions under the further control of Non-Ratification. The Non-Ratification of Preliminaries mider the circumstances of such large Powers is not considered to involve any breach of the Law of Nations. ^198. The Ceremonial to be observed in the recep- Ceremo- tion of a Foreign Minister at the Court to wliich he ception. is accredited has undergone great modifications within recent times. It was one of the regulations which were adopted by the Congress of Vienna, (anno 18 15,) that an uniform mode of reception for Diplomatic Agents of each class should be estabhshed in each State ; and although this provision has not been 302 RIGHT OP LEGATION. literally carried into execution, the practice of Nations has conformed itself to the spirit of it. Whatever be the rank or class of a Pubhc Minister, it is his first duty to notify his arrival immediately to the Minister or Secretary of State for Foreign affairs of the Sove- reign to whom he is accredited. In the case of an Ambassador, as distinguished from a Diplomatic Agent of the second Class, it was formerly the practice for him to make a Solemn Entry into the city, which was the residence of the Sovereign or the seat of his Government. This ceremony may now be regarded as fallen into general desuetude, as far as regards the mutual intercourse of the Christian Powers of Europe. The Solemn Entry was part of the pageant, which terminated in a Public Audience, in which the Am- bassador presented his Letters of Credence to the Sovereign in person. Ambassadors, as distinguished from Ministers of the Second Class, have always been entitled to demand a Public Audience of the Sove- reign, but the Solemn Entry appears to have been a Ceremony which was within the discretion of the Sovereign, who receives the Embassy, to accord or not at his pleasure ; and we find accordingly, that both the Holy See and the Ottoman Porte had spe- cial rules of practice, under which the Solemn Entry was granted only to the Ambassadors of particular Nations. With regard to the Pubhc Audience, which is granted to Ambassadors and Nuncios on their arrival, and sometimes on their departure, the same Ceremony is observed to all alike. The Introducer of Ambassa- dors, or the Master of the Ceremonies, proceeds in a State carriage of the Sovereign drawn by six horses to the Hotel of the Ambassador, and conveys him to the Palace of the Sovereign, where he is received in RIGHT OF LEGATION. 303 the presence of the great Officers of the Court, with the same honours which would be paid to the Sove- reign, if present, whom he represents. The Ambas- sador then reads a Speech of Audience in which he refers to his Letters of Credence, which he thereupon takes from the hands of his Secretary of Embassy, who attends him on such occasions, and presents to the Sovereign, who hands them to the Minister or Secretary of State for Foreign Affairs. The Sove- reign then reads an answer to the speech of the Ambassador, who thereupon retires from the presence of the Sovereign with the same forms with which he entered the Presence-Chamber. The Ceremony of a Pubhc Audience has of late been freqiiently dispensed with at the Court of St. James' on occasions of the reception of an Ambassador from an European Sove- reign, and on such occasions a Private Audience has been substituted of a similar kind to that which is accorded to a Foreign Minister of the second or third class. Such an audience, however, is not altogether free from Ceremony. The Sovereign receives the Ambassador in the presence of the Minister or Secre- tary of State for Foreign Affairs, and the Introducer of Ambassadors, or the Master of the Ceremonies, at- tends to present in due form the Ambassador, who makes a short speech explanatory of his Mission, and having presented his Letters of Credence to the Sovereign, retires. § 199. It being necessary that Nations should treat TheSacred and hold intercotu'se with one another in order to of'arim- adjust disputes and maintain relations of amity, and bassador. it being impossible for a Nation collectively to treat with another Nation, there results a necessity for Nations to delegate Agents on their behalf, and to furnish them with full Powers to negociate and settle 304 RIGHT OF LEGATION. the matters which may be at issue. The Right of Embassy being thus estabhshed, the inviolability of the person of the Ambassador is a necessary conse- quence ; for if the person of the Ambassador is not secure from violence of every kind, the Right of Em- bassy becomes precarious and the. channels of Inter- national Reconcihation will be closed. VatteP^ ac- cordingly derives the independence and inviolability of the Ambassadorial character from the Natural and Necessary principles of the Law of Nations. This attribute of inviolabihty is so absolute, that the per- son of an Ambassador is held to be sacred. " Sanctum inter gentes jus legationum, sancta corpora legato- rum.""* Bynkershoek"' accounts for the peculiar sacredness of the person of the Ambassador on the ground that an Ambassador represents his Sovereign, and that he is the Minister of peace and alliance, and that without his agency the Society and Repose of Nations could not be maintained. His Extra- ^ 2 GO. The inviolability of the person of an Ambas- lity. sador entails, as a necessary incident, his entire ex- emption from the Territorial Jurisdiction of the Sove- reign to whom he is accredited. This exemption, which apphes to the civil as well as the criminal law of the Territory, is founded upon considerations not of mere convenience but of necessity ; for an Ambassador ought to be protected from every kind of compulsion, as well from that which relates to things necessary to him, as from that which touches his person, in order that his security may be com- plete^. The fiction of Extra-territoriality has been 55 Droit des Gens, L. VII. § 81, Pacis, L. I. c. 18. § i. 103. Kluber, § 103. Hefter, 57 De Foro Legatonim, c. 5. § 205. 58 Nam omnis coactio abesse 5* Grotius de Jure Belli et a legato debet, tarn quse res ei EIGHT OF LEGATION. 305 accordingly introduced with a view to express in the most forcible manner the completeness of this exemp- tion. According to this fiction the Public Minister, although de facto resident in a foreign country, is regarded as de jure resident within the territory of the Nation which he represents, and he continues to be subject to the Laws of his own country in all matters which concern his Personal Status and Pro- perty ^^. The Kight of Personal Inviolability attaches to a PubHc Minister from the time when he enters the territory of the State to which he is accredited, if notice of his Mission has been previously commimi- cated to it, to the time when he qiiits the territory, although war should have actually broken out be- tween his own Nation and the State to which he is accredited before he has taken his departure. The Ottoman Porte in this respect has conformed its prac- tice to that of the Christian Powers of Europe. It was formerly the rule of the Porte, if war broke out between it and a Christian Power, to imprison the Diplomatic Agent of that Power in the Castle called the Seven Towers, vmtil peace was reestablished. The Porte first waived this practice when the war broke out with Russia, which was terminated by the peace of Bucharest (28 May, 18 12). In the course of the conferences which preceded the departure of the Ambassadors of France, Great Britain and Russia, necessarias, quam quse peraonam retur in legatis, ut qui sicut fic- tangit, quo plena ei ait securitas. tione quadam habentur pro per- Grotius De Jure Belli et Pacis, sonis mittentium, ita etiam fic- L. II. c. 18. § 9. tione simili constituerentur quasi 59 Quare omnino ita censeo, extra territorium ; unde et civili placuisse gentibus ut communis jure populi, apud quem vivunt, mos, qui quemvis in alieno ter- non tenentur. Grotius de Jure ritorio existentem ejus loci terri- Belli et Pacis, L. II. c. 18. § 4, 5. torio subjicifc, exceptionem pate- PAET I. X 306 RIGHT OP LEGATION. in the year 1827, the Porte formally declared to the Ministers of Austria and Prussia that the Seven Towers no longer existed®". Extra-ter- ^ 20I. The Same reasons which warrant the In- of the^Am- dependence and Personal Inviolability of an Ambas- Hotef°and ^^dor, concur likewise in securing the sanctity of his of his Suite, abodc. The general consent of Nations has accord- ingly extended in practice the fiction of Extra-terri- toriality to the Hotel of the Ambassador ; which is not merely protected by the positive Law of Nations from all lawless outrage, but is inaccessible to the ordinary officers of Justice or of Revenue ^\ The Extra -territoriality of the Ambassador's Hotel is however not so absolute as to constitute it an asylum for others than those, who form the suite of the Am- bassador himself. Bynkershoek*^ has discussed the Right of Asylum for all who take refuge in the Hotel of an Ambassador, which Grotius^ has pronounced to be a privilege depending upon the concession of the State wherein the Ambassador resides, and not to be a part of the Law of Nations ; and Bynkershoek has correctly pointed out, that all the privileges of Am- bassadors have one and the same object in view ; namely, to enable them to discharge the duties of their office without impediment or restraint ; and that it is not necessary for the discharge of their duties that they should affiDrd shelter from justice to third parties, who are not connected with the end and objects of the Mission. The hmits, within which an Ambassador may claim the priAdlege of Extra-terri- toriality, in regard to his own Personal Suite, are (>° Gh. de Martens, Guide Di- ** Bynkershoek, De Foro Le- plomatique, § 23. gatorum, c. 21. (•^ Vattel, Droit des Gens, *3 Grotiiis, De Jure Belli et L. IV. c. 9. § 117. Pacis, L, II. c. 18. § 8. RIGHT OF LEGATION. 307 within the discretion of the Ambassador, the privi- lege in regard to his own Personal Suite being granted for the convenience of the Ambassador him- self ; but an Ambassador cannot waive, at his discre- tion, the privilege of extra-territoriality in regard to any members of his Official Suite ; that is, of any officer of his Household appointed by the Sovereign himself. The Chief of the State alone may waive the privilege of Extra-territoriality on behalf of the Ambassador and the personnel of the Embassy. It is not even competent for any of these individuals to waive at their own pleasure this privilege®^, for it is not their personal privilege, but the privilege of the Independent State or Nation which they represent. Difficulties have occasionally arisen, from persons claiming without sufficient warranty, to belong to the Suite of a foreign Minister, and the usage of most Nations now requires, that an official list of all the members of the suite of a Foreign Minister shall be transmitted to the Minister or Secretary of State for Foreign Affairs at fixed periods'*^. ^202. It follows from the principle of Extra-terri- The Am- toriahty, that a Foreign Minister is at liberty to exer- jurisdiV^ cise Criminal and Civil jurisdiction over the personnel Jj^™ "^f"" of the Embassy, if he be so empowered by his own somei of Ti-r • T T 1 -ji j_i T X- f. the Em- Nation, it rests accordmgly with the discretion oibassy. the Sovereign Power, which accredits an Ambassador, to invest him with such Jurisdiction. It is customary in Civil matters for a Foreign Minister to be invested with, and to exercise, jurisdiction in aU questions which may arise amongst the members of his Official Suite, or between them and the citizens or subjects of 64 Vattel, L. IV. c. 8. § 3. ^5 Wheaton's Elements, Part Bynkershoek, De Foro Legato- III. c. 1. § 16. Phillimore's Com- rum, c. 23. mentaries, T. II. § 188. X 2 308 EIGHT OP LEGATION. the country to which he is accredited ; but it is not the usage for him to exercise jurisdiction in criminal matters, over any person officially attached to the Embassy further than by arresting the offender and sending him for trial back to his own country. In the case of his own Personal Suite, a Foreign Min- ister may, if he pleases, upon complaint made to him, dismiss any individual from his service, and so withdraw from him the protection to which he would be entitled under the Law of Nations, if he continued in his service. Liability §203. There are some exceptions to the privilege ba3aadoH;o of Extra-territoriaHty as applied to the Hotel of an the pay- Ambassador. A Foreisrn Minister is privileged from ment of _ r o Local dues, being Called upon to contribute personally to the General Taxes of a Country ; that is, to such Taxes as are levied by the Government, and which are available for the General purposes of the State, in which the Ambassador is not interested. But a Foreign Minister is not exempt from the payment of Local dues, which are raised for purposes of Local administration, and which are expended on Local objects, from which he himself, in common with his neighbours, derives immediate benefit. Thus he is liable to pay the Local Rates'*'* assessed upon his Hotel, or its site, for sewerage, lighting, watching, and similar objects. He is also hable to pay toUs for the use of roads and bridges, and also for the carriage *6 This liability has been some- the Country. A practical diffi- times disputed, and Kliiber holds culty will always be found in it to be doubtful, whether such levying them, as the Person and Eates can be rightfully exacted, Property of the Ambassador is if the Ambassador is unwilling to exempt from the Jurisdiction of pay them. Wheaton considers the Civil Tribunals, which must the Ambassador's Hotel to be be appealed to in order to en- subject to taxation, in common force payment in the last resort, with the other Eeal Property of EIGHT OF LEGATION. 309 of his letters, if they are conveyed to him by the Local Post ; and as he is at liberty at all times, if he pleases, to send his letters by a privileged Courier, it is therefore optional for him to employ the services of the Local Post, and if he employs it, he derives imme- diate advantage therefrom®^. § 204. Another and more important exception to Liberty of the privilege of Extra-territoriality, is found in the worsMp. exercise of Religious Worship (Culte R^ligieux) in the Hotel of an Ambassador. A Foreign Minister has not the right of maintaining a Chapel and a Chaplain within his Hotel, under the Law of Na- tions''^ ; and accordingly, we find the Hberty of Reh- gious Worship for the Ambassador and his Suite, made a matter of' Treaty- engagement between the Roman Cathohc and Protestant Powers of Europe, subsequently to the Reformation ; and between the Christian and Mahommedan Powers at all times since Diplomatic intercourse was estabhshed between them. There are some countries in which, under the Terri- torial Law, aU forms of Rehgious Worship are per- mitted, in which case no Treaties are required : there are others, in which one form of Rehgious Worship is estabhshed, and none other is tolerated. In such cases it has been usual to stipulate by Treaty for the free exercise of Religious Worship, on behalf of the members of the Embassy and the Suite of the Am- bassador within the Hotel of the Embassy. It has been an invariable rule to concede this privilege, whenever there has been no public place of Rehgious Worship at the seat of the Embassy, which its mem- bers could attend, as being in accordance with their Rehgious Creed ; or wherever there has not been 67. Ch. de Martens, Guide Diplomatique, § 109. 6^ Martens, Precis, § 222. 310 EIGHT OF LEGATION. withiii the Hotel of another Ambassador accredited to the same Court a Chapel, in which such Rehgious Worship has been already permitted. Thus, as soon as the Emperor Joseph II had granted liberty of Re- ligious Worship to the Protestants of the Confession of Augsburg resident in Vienna, he insisted upon the discontinuance of Rehgious Worship in the Cha- pels of the Legations of the Protestant Princes of the Germanic Empire^'. Grotius is altogether silent on this subject, but his silence has not any significance, seeing that in his day a Resident Embassy (Assidua Legatio) was altogether a novelty, and it had not any warrant of ancient Custom™. At the time, how- ever, when Vattel wrote his work on the Law of Nations, the free exercise of Rehgion was a privilege allowed to a Foreign Minister in almost every country. Vattel speaks of it as resting on established Custom ^\ " It is indeed highly proper," he says, " that a Mi- nister, and especially a Resident Minister, should enjoy the free exercise of his Rehgion within his own house, for himself and his Suite. But it cannot be said that this Right, like those of Independence and Inviolability, is absolutely necessary for the success of his Mission, particularly in the case of a tem- porary Minister, the only one whom Nations are bound to admit. The Minister may in tliis respect do what he pleases in his own house, into Avliich nobody has a right to pry or to enter. But if the Sovereign of the Country, where he resides, should for substantial reasons refuse him permission to prac- tise his Rehgion in any manner which might render 69 Kliiber, Droit des Gens, Tacis, L. II. c. t8. § 3, 2. §215. Cli. de Martens, Guide 7i Vattel, Droit dcs Gens, L. Diplomatiqlie, § 35. IV. § 104. 70 Grotius, De Jure Belli et RIGHT OF LEGATION. 311 it an object of Public notice, we miTst not presume to condemn the conduct of that Sovereign, much less to accuse him of violating the Law of Nations. Ambas- sadors are not debarred at present from the free exer- cise of their Keligion in any civilised coimtry ; for a privilege which is founded on Eeason, cannot be re- fused when it is not attended with any evil conse- quences." The practice of Nations since the time of Vattel has become still more courteous ''^ and has gra- dually extended the privilege of Rehgious Worship to the estabHshment of pubhc Chapels, attached to the several foreign Embassies ; so that although the privilege of a Chapel within the Hotel of the Ambas- sador is a matter of Comity, and not of strict Eight, still the custom of permitting it has become so imi- versal, that to refuse such permission in the present day would be little less discourteous, than to refuse to permit the continuous Residence of the Ambas- sador himself. The privilege of a Chapel, however, does not extend to the use of beUs, or to any pubhc processions or ceremonies outside the walls of the Chapel. § 205. Jurists are divided in opinion upon the question invioiabi- whether an Ambassador is by the Law of Nations en- Imbassa- titled of Eight to Safe Conduct whilst passms: through ^or passing o _ _ i o o through the territory of a third Power, on his way to or from the tem- the territory of the Nation to which Ije is accredited, third" Grotius''^ does not expressly determine this question, ^°^'^''- when he says, that " the law respecting the Inviola- bility of Ambassadors is to be understood as binding upon the Nation to whom the Embassy is sent, more particularly if it has received the Embassy, as from 72 Ch. de Martens, Guide Di- 73 Grotius, De Jure Belli et plomatique, § 35. Wheaton's Pacis, L. II. c. 18. § 5. Elements, Part III. c. i. § 21. 312 EIGHT OF LEGATION. that time a tacit Compact miay be considered to have been introduced." Bynkershoek, on the other hand, holds in terms, that the privilege of the Ambassa- dorial Character is only operative within the State to which he is accredited, and he cites in support of his view the opinions of Gentilis, Zouch, Huber, and Wicquefort. Bynkershoek^* admits however that the opinions of the more ancient writers upon the Rights of Ambassadors were in a contrary sense. Vattel, on the other hand, draws a distinction between the enjoy- ment of all the Rights annexed to the Diplomatic Cha- racter, and the enjoyment of Personal Inviolability. It must be borne in mind, that many of the Rights now recognised as incident to the Right of Embassy, have only been so recognised, since the practice of ac- crediting Resident Ambassadors has given occasion for their recognition. " It is true," says Vattel", " that the Prince alone to whom the Minister is sent is obhged and specially engaged to seciire to him the enjoyment of aU the Rights attached to his Character ; but the others, over whose territory he passes, cannot refuse to him that to which the Minister of a Sove- reign is entitled, and which Nations owe reciprocally to one another. They owe to him above aU things perfect Personal Security. To insult him would be to injure his Master and the whole Nation to which he belongs : to arrest him and offer violence to him would be to impair the Right of Embassy, which ap- pertains to aU Sovereigns." Merlm^", Kliiber'''', Ch. de Martens'''^ and Wheaton^^, support Vattel's opinion, 74 Bynkershoek, de Foro Le- Publique, Sect. V. § 3. gatorum, c. 9. § 7. 77 Droit des Gens, 204. 75 Droit des Gens, L. IV. c. 8. 7^ Guide Diplomatique. § 36. § 84. 79 Elements, Part III. § 20. 7''^ Repertoive, tit. ]\tinistre RIGHT OF LEGATION. 313 and Merlin disputes with good reason the interpreta- tion, which Bynkershoek has assigned to the word passerende, which occurs in an Edict of the States General (anno 1679) issued on the occasion of the Negociations for the peace of Nimeguen. The Edict announced that the persons, domestics, and effects of foreign Ambassadors or Ministers, " hier te lande komende, residerende, of passerende," should be ex- empted from arrest. Bynkershoek considers this Edict as having reference only to foreign Ministers accredited to the States General, and construes the word passerende as referring not to those who might have landed in the territory of the States General, and were passing through it on their way to the ter- ritory of a third Power, but to those who were about to leave the territory of the States General, having been accredited to them as Resident Ministers. " Non interpretor," are his words, " de legatis transeuntibus, sed abeuntibus." Merlin in reviewing Bynkershoek's interpretation maintains, that passerende, being the Dutch equivalent of the French word passer, is apph- cable only to a person who, having arrived at a place, proceeds onward to another place, and is never used to designate a person who is leaving a place where he has been residing, and going back to the place from which he first came. Merlia however very justly remarks, that when it is said that an Ambassador is entitled to have his Independence respected in every territory through which he passes, it must be under- stood that he travels under the avowed character of an Ambassador ; in other words, that his passport cer- tifies his Public Character. If an Ambassador, who is in itinere, presents such a pasport at the frontier of a State other than to which he is accredited, and is thereupon allowed to enter its territory, the good 314 EIGHT OF LEGATION. faith of the Sovereign of that State becomes pledged to respect his Official Character, as long as he does nothing inconsistent with perfect good faith on his own part. A Nation is at Hberty to refuse a passage through its territory to a foreign Minister accredited to a tlnrd Power, precisely as a Nation is entitled to refuse altogether to receive a foreign Minister accre- dited to itself, but, if it allows him upon knowledge of his Character to enter its territory, it may not maltreat him nor suffer any violence to be offered to his Person. The reasons assigned by Bynkershoek for restrict- ing the privilege of the Ambassadorial Character are thus stated, " quia ilia privilegia voluntatis tacitse sunt post admissum legatum, et legatum etiam repel- lere hcet, neque legatio inter ahos, quam qui misit et ad quem mittitur, versatur." On examining these reasons, it will be found that the principle involved in the first reason does not mihtate against Yattel's view, if the Ambassador travels with a passport which certifies his Official Character, as every State through whose territory he proposes to pass is at hberty to decline to admit him in such Character, and his ad- mission is thus a Voluntary act upon its part ; on the other hand, the second reason, whilst it may be a vahd reason so far as Resident Embassies and the secondary rights of Embassy incidental to Residence are concerned, is inconsistent with the fact that the person of the Courier who is the bearer of the de- spatches of a Foreign Minister is sacred imder the Law of Nations, whilst he is passing through the territory of a Power to whom the Minister is not accredited, if the Official Character of the Courier is certffied by his passport. The Right of Innocent Passage, in regard to an Ambassador on his way to the Court to which RIGHT OF LEGATION. 315 he is accredited, is a Right in which all Nations are interested. It may be said of the disputes of Nations as of individuals, " Rei Publicae interest ut finis sit litium." It is in the common interest of Nations that the peace of the World should be maintained, and the Personal Inviolability of the Ambassador, whose Mission is essentially that of Peace, is as necessary for that end, when he is passing on his way to his destination, as when he has reached his post. Yattel* holds that Francis I of France was justified not merely in declaring war against the Emperor Charles V, by reason of the murder of his Ambassadors, accre- dited respectively to Constantinople and to Venice, whilst passing tlirough the Duchy of Milan, but in calling in the aid of other Nations, since it was not a Private Right of a particular Nation which was in dispute, but a matter which involved the Right of all Nations, since they are all interested in maintaining the Sacred Right of Embassy and of those means which enable them to hold communication with each other and to treat of their Commercial interests *\ Wheaton, who, as already observed, supports the views of Vattel and Merlin, remarks, that the Inviolability of a public Minister in his passage through the terri- tory of a third Power depends upon the same principle which protects the person of liis Sovereign coming into the territory of a friendly State by the permission, 8° Droit des Gens, L. IV. c. 7 . quoted as examples of the prao- § 84. tice of Nations in accordance 8 1 The cases of the Due de Belle with Bynkershoek's view, will be Isle, Ambassador of France to found on examination to be in- Prussia, arrested in Hanover on stances of enforcing a strict Eight his way to Berlin, and of the of War. The details of each case Marquis de Monti, Ambassador will be found in the collection of from France to Poland, arrested Causes Celebres du droit des in Dantzig on his way back to Gens, par Ch. de Martens, Tom. France, which are sometimes I. pp. 210, 285. 316 EIGHT OP LEGATION. express or implied, of the local Government. Both are equally entitled to the protection of that Govern- ment against every act of violence and every species of restraint inconsistent with their Sacred Character. " We have used," says Wheaton, " the term permis- sion, express or implied, because the pubHc minister of a Sovereign Prince accredited to one country, who enters the territory of another country making, known his Official Character in the usual manner, is as much entitled to avail himself of the permission, which is implied by the absence of any prohibition, as the Sovereign himself in a similar case^^." Consuls § 206. The Institution of PubHc Consulates in Fo- matic reign Countries (Consulats k I'Etranger) dates from Agents. ^^ Sixteenth Centviry, although the name of Consul, as appUed to an Officer exercising jurisdiction in Com- mercial matters, was in familiar use in the cities of the Mediterranean and in the Hanse Towns since the Thirteenth Century ^^. The Judge Consul was ori- ginally a local Officer annually elected in each great City of Maritime Commerce by the members of the Mercantile Community estabhshed therein. It was his province to determine all disputes between the members of that Community and foreign merchants in matters of Commerce and Navigation. These Officers were for the most part two in number, and the Consolato del Mare, one of the earhest compila- tions of Rules for the decision of Maritime and Com- mercial questions, is considered to have been so called, as embodying the Riiles according to which the Judge- Consuls, established in the Maritime Cities of Spain, proceeded in determining the questions submitted to 8i Elements, Pt. ITI. § 20. f^J The office of Judge Consul B3'nkershoek, deForoLegatoi-um, was first introduced at Barcelona c. 3, 9. in Spain in the year 1279. EIGHT OF LEGATION. 317 their decision. As Commerce increased, these Local Institutions became inadequate to the wants of Mer- chants of different Nationahties, and we thus find the Institution of Judge Consuls faU into disuse, and their functions pass into the hands of Officers bearing in- deed the name of Consuls, but appointed not by the resident body of merchants in each City, but by Fo- reign States, and commissioned by them to watch over the Commercial interests of their subjects. The duties of a Consul in the modern sense of the word are strictly limited to the management of the private affairs of the subjects or citizens of the State, from which he has received his Commission. He is not concerned in any way, as Consul, with the pubhc affairs of States, and he is accordingly not clothed with a Diplomatic Character. J. J. Moser is almost the only Jurist of note who has claimed for the Consul a place of inferior rank amongst Public Ministers ; but ByiLkershoek, Wicquefort, Vattel, and Kliiber conciu' in rejecting such a claim. It is true, that Eu- ropean Consuls accredited to Mahommedan Powers have in fact exercised many of the functions which mark the Diplomatic Agent, and have been clothed with many of the attributes of the Diplomatic Cha- racter ; but the Status of the Consul in the Levant, as well as in China, is altogether exceptional, and rests upon special Treaty-engagements between the Chris- tian and the Mahommedan or Buddhist Powers ^^ The Consul is not the bearer of Letters of Credence, but he receives a Commission (lettre de provision) signed by the Sovereign authorising him to discharge 84 Under special Treaty-en- risdictiou over British subjects, gagements the Consuls and Vice- and between British subjects and Consuls of Great Britain in the native inhabitants. Levant and in China exercise ju- 318 EIGHT OF LEGATION. the duties of Consul in the place where he is to re- side : his nomination is not addressed to the Chief of the State, but his appointment is communicated to the Government, and its permission is required to enable him to enter upon his functions. This permis- sion is given by a Rescript or Order from the Fo- reign Department of the State, to which the Con- sul is accredited, termed an Exequatur, the form of which varies in different countries, but the purport of which is to authorise the functionaries of the Home as distinguished from the Foreign Department of the Government to recognise the OflBcial Character of the Consul. ^^ The Consul cannot enter upon his func- tions before the delivery of the Exequatur, which may be revoked at any time at the discretion of the Go- vernment of the Country, wherein he is estabhshed. It is not unusual in the case of Consuls estabhshed in the Free Cities of the Germanic Confederation, and in Mahommiedan Countries, that they should also be ac- credited as Agents for Pohtical purposes, or as Charges d' Affaires. Under such circumstances they are in- vested with the Diplomatic Character, and are enti- tled to the privileges of Pubhc Ministers. It is con- formable to the principles of Pubhc Law that the Consul, who is also Charge d' Affaires, should not en- gage personally in trade. In the case of ordinary Consuls some Nations permit and others allow their Consiils to trade. A Consvd, who is engaged in trade, is amenable in aU that regards his trade to the Local Jurisdiction equally as any private merchant, and al- though he may be a natural-born subject of the State whose Commission he bears, he wih notwithstanding his Commission of Consul, acquire by continuous resi- ts There are various grades in the Consular department, such as Consul-General, Consul, Vice-Consul, Consular Agent. RIGHT OF LEGATIOIif. 319 dence and trade a Commercial Domicil in the Country, in wHch he maintains his trading EstabHshment, and his property may thus in case of war be hable to be treated as the property of an Enemy by any Power which is at war with the Country in which he car- ries on his trade. CHAPTER XII. EIGHT OF TREATY. Sacred character of Leagues between Nations — Leagues may be in confirmation or in extension of Natural Right — Religious obliga- tion of every League — Equal and Unequal Leagues — Unequal Leagues not contrary to Equity — Personal and Real Leagues — Tests of Continuing Leagues — The Holy Alliance of 1 8 1 5 a strictly per- sonal League — History of the Holy Alliance — The Family Compact of the House of Bourbon — Treaties of Navigation and Commerce — Treaties of Jurisdiction — Treaties of Extra-tradition — Civil law of the Romans as to fugitives from Justice— Common Law of Nations — Extra-tradition of fugitive slaves and of deserters a frequent sub- ject of Treaty-engagement — Extra-tradition of political offenders exceptional — ^ Treaties of Boundary — Judicial Decisions as to the permanence of certain Treaty-Engagements — Treaties which create a Servitude of Public Law — Treaties of Equal and Unequal Alliance — Treaties of Protection — Treaties of Subsidy — Treaties of Guaranty — Treaties of Neutrality — Conclusion and Ratification of Treaties — Termination and Renewal of Treaties. The sacred § 20/. It tas been observed in discussing the Inter- of Leagues national Relations which existed between the Christ- between [g^j^ Powers of Europe and the Ottoman Porte at the Nations. _ J-. conclusion of the Eighteenth Century, (§ 61,) that it was a maxim of the Mahommedan world, that there was no other Law of Nations than that which is de- rived from Positive Compact or Convention. Such also seems to have been the condition of things con- templated by the Roman Jurists, when they admitted the possible existence of an intermediate state between amity and hostihty, in which the members of one Nation might stand in relation to the members of another Nation, when there was no League between the Nations themselves. It appears to have been a RIGHT OF TREATY. 321 maxim of the Roman Law' in reference to such Nations, that although they were not to be regarded by the Romans as Enemies, yet if any thing should find its way out of Roman territory into their country it woiild become their property, and if a Roman citizen should be captured by them, he would become their slave, whilst Roman citizens would be entitled to exercise analogous control over persons and things appertaining to such Nations, and happening to come within Roman territory. A doctrine of similar im- port was upheld amongst the ancient Greeks, and the practice of Statesmen in such matters fomid countenance in the writings of Philosophers. If we travel back to a period still more remote, we find that amongst the Jews of olden time it was denied that any satisfaction was to be made to an injured party who was a foreigner, unless his Nation was a Con- federate of the Jewish Nation. There might however be Communities beyond the pale of the B.ace in the case of the Jew and the Greek, and beyond the pre- cincts of the Asylum in the case of the Romans, to- wards whom ReHgion would enjoin the performance of the most friendly acts, if PubKc Covenants to that efiect had been made with them, and when such Covenants had been made by the Sovereign Power in behalf of the Nation, the whole Nation was considered to be exposed to the wrath of the Deity, if any indi- vidual violated them in any respect. It thus became a matter of the last importance of Nations to reduce into a system the making of Public Covenants or ' Pomponius apud Dig. XLIX. nostro ad eos venit illorum fit, et Tit. XV. § 5. Nam si cum gente liber homo nostra- ab eis captus aliqua neque amicitiam, neque servus fit eorum. Idemque est, hospitium, neque foedus amici- si ab illis ad nos aliquis perve- tise causa factum, hi hostes qui- nerit. dem non sunt ; quod autem ex PART I. Y 322 RIGHT OF TREATY. Leagues, and the observance of the obligations of Law resulting therefrom. The Eoman Nation from its peculiar origin, being founded on the Right of Sanc- tuary, seems to have felt an instinctive want of more definite institutions for this object than any which we discover amongst the Greek Races, and we find accordingly a religious Corporation established in Rome at a very early period, the Collegium Fetialium, whose special business it was to determine the con- ditions and to regulate the forms under which the Roman People could denoimce Treaties and declare War without incurring the anger of the Gods. Leagues § 2o8. Grotius^ has adopted a twofold division of ™nfinn-™ Leagucs, arising from the matter thereof, namely, those ation or in -which require such things only as are agreeable to extension -*- . , of Natural the Law of Naturc, and those which add something '^ ■ more thereunto. PuffendorP, whilst he approves the principle of this division, subdivides the latter class, and thereby virtually adds a third class, namely, those which restrain the duties of Natural Law, when they are too general and indefinite, to certain and particular articles. " Leagues," says Grotius, " of the first kind are generally made between enemies upon the con- clusion of a war, and formerly were often made, and indeed were in a certain manner necessary, between those who had never contracted any engagement to- wards one another ; which arose from this circum- stance, that the Ride of Natural Right, which main- tains that there is a kind of Natural Relationship between all mankind, and therefore that it is wrong for one man to harm another, had become effaced by evU habits, as of old before the Deluge, so likewise sometime after the Deluge, so that it was accounted ^ De Jure B. et P. L. II. c. 1 5. 3 Law of Nature and of Na- § 5. tions, L. VIII. c. 9. § I, EIGHT OF TREATY. 323 lawful to rob and plunder Strangers, without declaring war*. So inveterate indeed was the corruption of manners amongst the Greeks, that Aristotle, the Phi- losopher of Practical Life, maintained that hunting, as a branch of warfare, was a Natural habit of mankind, as respects wild beasts and such individuals of the human race, as, being uitended by nature to be in a subject state, refuse to submit themselves^. § 209. A League in its simplest form was but the Religious extension of the Religious Obligation, under which "f efeiy" Fellow-Citizens stood towards one another, as votaries i^«^g"«- of the same Gods. It was the formal recognition on the part of two Nations of a reciprocity of Duty and Right under a common Sanction. Thus the Amphic- tyonic Confederation was a League of States, in which the Religious character was paramount, all the mem- bers of the League being votaries of Apollo, and making offerings to that Deity in common at the Delphic Shrine. The Civitas or Nation was in its earhest form a body of persons making sacrifices to the same Deities. The Stranger was beyond the pale of the common Rehgion of the Civitas. There was accordingly no obhgation upon the members of a State in respect of a Stranger, as such, corresponding to the obligations which existed amongst Fellow-Citizens, who could ap- peal in the last resort to a Divine Sanction, which was acknowledged by all ahke. The League, however, admitted the Stranger within the pale of Religion, 4 Thuoydides describes in like reports the same of the Iberians, terms the manners of the early and Csesar de B. Gall., L. VI. Greeks, L. I. c. 5. Servius, in his c. 23. says of the Germans, La- Commentary upon the eighth and trooinia nullam habent infamiam, tenth ^neid, speaks in similar qure extra fines cujusvis civitatis language of the Tyrrhenians ; fiunt. Diodorus Siculus, L. V. c. 34. 5 Politica, L. I. § 3. y 2 324 EIGHT OF TREATY. and the ceremony of his admission was the offering of a common sacrifice to the Deity. Hence we find amongst the Greeks that the simplest form of League was de- noted by the term a-n-ovSri, which signifies a common libation poured out to the Gods, and which had a symbohc character, seeing that the Contracting Par- ties mixed wine together as an emblem of concord, and then poured it forth in common with a prayer, that whoever should first break the compact might have his blood poured forth in like manner.^ The conclusion of a League between two Nations consti- tuted a State of amity between them, which put an end to that vague condition which Sallust' describes, when he speaks of King Bocchus as " nobis neque bello neque pace cognitus." Under the simplest head of Leagues may be classed aU Compacts between Nations for fireedom of Commerce and for Hospitality towards Strangers of either Na- tionahty, as being agreeable to the Law of Nature. A Nation may enter freely into Leagues of this kind with every Nation, as the duties involved in them cannot conflict with one another, any more than the duties of Natural Law. " No person," says the Advo- cate of King Perseus before the Achaean Assembly, " seeks to induce you to enter into any new Alliance, which wiU embarrass us, but only into an agreement which will secure to each party freedom of Commerce and reciprocity of Right. Such an agreement will not be inconsistent with our Alliance with the Ro- mans." Unequal §210. Leagucs, which add something to the Na- Leaguel* tural Law of Nations, are divided by Grotius into Equal and Unequal Leagues. Puffendorf adopts the 6 Homer, II. III. 300. 7 Sallust. de Bello Jugurthino, c. 22. RIGHT OF TREATY. 325 same classification. The first are such as are con- cluded on equal terms, when not only the engagements themselves are equal on both sides, either absolutely or in proportion to the strength of either party, but also when neither party is by such engagements ren- dered in any way dependent upon the other. Un- equal Leagues are of two kinds, according as the ine- quality regards the stronger or the weaker party. The stronger party may tuidertake to give assistance without reqiiiring it in return, or to perform more in proportion than the weaker State is required to do, or the weaker State may submit to conditions which limit the exercise of its Natural Right of independence. For instance, a Nation may undertake to account the fiiends and enemies of another Nation as its own friends and enemies, or not to fortify particular parts of its own territory, or not to keep on foot more than a certain number of trained soldiers or war ships, without being shorn of its Independence in any way. On the other hand, if a Nation undertakes not to make peace or war at all without the consent of an- other Nation, or not to send or receive Ambassadors, such an undertaking would substantially impair its Independence, and the Nation which has so con- tracted with another Nation will have become vir- tually dependent upon it. ^211. VatteP has made a distinction between Un- Unequal equal Leagues which are contrary to Equity, and norcon- Unequal Leagues which are not contrary to Equity, ^''J^j*° and consequently not contrary to Natural Law. Of the latter kind are those which contain conditions which a Nation may feel authorised by the care of its own safety to impose upon another Nation, either by way of precaution against probable danger, or by way of 8 Droit des Gens, L. II. § i8o. 326 EIGHT OF TREATY. penalty in order to punish an unjust aggressor, and to render the Nation incapable for some time of renew- ing its aggression. A Nation, which has been victo- rious in war, dictates for the most part to its adver- sary Tinequal terms of peace. There is a Hmit, how- ever, beyond which such inequality may not extend without awakening the alarm and enlisting the sym- pathy of other Nations in behalf of the vanquished. " Sound policy," writes Vattel, " wiU not permit a Great Power to suffer the SmaU States in its neigh- bourhood to be oppressed. If it abandons them to the ambition of a Conqueror, the latter will very soon be- come formidable to it in its turn. Accordingly Sove- reigns, who are in general sufficiently true to their own interests, seldom fail to observe this maxim. Hence the Leagues, at one tune against the House of Austria, at another time against its Rival, according as the one or other Power preponderated. Hence that Equilibrium, the perpetual object of Negociation and War." Personal §212. Another celebrated distinction of Leagues, Leagues. wHch is rccognised by Grotius^ and Piiffendorf, is that which divides them into Personal and Real. " The former," says Puflfendorf ^°, " are such as are made with the Prince purely with relation to his Per- son, and expire with him ; the latter are such as are made with the Kingdoms or Commonwealths, rather than the Prince or Goveriunent, and these outhve the Ministry and the Government itself, under which they were first made." Yattel" adopts a somewhat clearer and sounder definition, when he says that Per- sonal Treaties relate to the persons of the Contract- 9 Dc Jure Belli et Pacis, L. II. c. i6. § i6. 10 Law of Nature and of Nations, L. VITI. e. 9. § 6. " Droit des Gens, L. II. § 183. EIGHT OF TEEATY. 327 ing Parties, and are confined and in a manner attached to them ; whilst Real Treaties relate only to things or matters in negociation between the Contracting Par- ties, and are wholly independent of their persons. A Personal Treaty expires with him who contracts it ; a Real Treaty attaches to the body of the State, and subsists as long as the State, unless the period of its duration has been expressly limited. It is of great importance not to confound these two kinds of Trea- ties. Accordingly Sovereigns are at present accus- tomed to express themselves in their Treaties in such a manner as to leave no tmcertainty in this respect, and this is doubtless the best and surest plan. In default of this precaution the subject-matter of the Treaty, or the expressions in which it is conceived, may furnish means to ascertain whether it be Real or Personal. ^213. Vattel has laid down certain general rules Tests of for ascertaining the character of a Treaty, whether it Treaties. " be a continuing Treaty after the death of one of the Contracting Parties. The circumstance, that a Treaty is concluded in the namie of a Sovereign Prince, does not thereby constitute it a personal Treaty, although when a Treaty is concluded in the name of a RepubHc or Popular Government, it is the Nation itself which contracts, and the Treaty is undoubtedly a Real Treaty. Pubhc Treaties concluded by a King are Treaties of the State, and are obhgatory on the Na- tion over which the King is Sovereign, and which he represents for external piu-poses. The presumption accordingly, in respect of every Pubhc Treaty, is, that it concerns the State itself, and is so far a Real Treaty. The question however as to its continuance is not thereby settled. It may be binding on the Nation, but the length of time during which it shall 328 RIGHT OP TBEATY. bind the Nation, may vary with the terms of the Treaty, or the subject-matter of it. Thus if a Treaty is concluded for a certain number of years, or is declared to be perpetual, its duration will not be dependent upon the lives of the contracting parties ; or if a King declares in a Treaty that it is made for Himself and his Successors, or that it is made for the good of his Kingdom, it is manifest that the Treaty is intended to last as long as the Kingdom itself In case of doubt, if there be no expressions iu the Treaty itself, or any circu.mstance dehors the Treaty which will determine its duration, it ought to be presumed to be a Real Treaty, if its provisions are favourable ; if its provisions on the other hand are odious, it may be with reason conchided to be a Personal Treaty, and as such intended to expire upon the death of either of the Contracting Parties. By favourable provisions are meant such provisions as tend to the mutual advantage of both the Contracting Parties ; by odious provisions are understood such provisions as are either an absolute burden upon one of the Parties, or are more burdensome on the one than on the other Party. This rule for determining the continuing operation of Treaties is conformable to Reason and Equity. In the absence of certainty, we must have recoiuse to probability. When the question relates to things favourable and equally advantageous to both Parties, it is consistent with probability that they should intend their contract to be permanent, and no injury can result to either Party by the contract being per- petuated. If, on the other hand, there be any thing odious in the Contract, if there be penal or prohibitive clauses in the Treaty Avhich lay a burden upon one of the Parties to it, there is no reasonable ground for supposing in the absence of positive words to that RIGHT OF TREATY. 329 effect, that the Sovereign, who entered into such engagements, intended to burden his kingdom for ever. On the contrary, every Sovereign is presumed to desire the safety and advantage of the Nation which he represents, and not to intend to load it for ever with a burdensome obhgation. On the other hand, it is consistent with probability, that the Party to the Treaty, who has imposed a burden on the other Contracting Party, if it was mutiially intended by them that he should enjoy his advantage for ever, would not have neglected so to stipulate as to place the matter beyond a doubt ; well knowing that mankind seldom submit to burdens unless bound by formal obKga- tions. If this presumption should be in a particular case inconsistent with the fact, and it should deprive a party of his Right, it will be a consequence of his own negHgence. Thus much is certain, that if one or other of the Contracting Parties must sacrifice a Right, it will be a less violation of Equity, that the one should forego an anticipated advantage, rather than the other should suffer an unexpected loss. It is the famous distinction between " de lucro captando et de damno vitando."^^ § 214. The term "League," has been adopted by The Holy Kennett, the translator of Puffendorf, to distinguish ■fgl'g"^ ^ °^ that species of Public Compact between Nations which strictly does not presuppose a State of War. Truces and League. definitive Treaties of Peace, which presuppose a State of War, belong to another Category, and will be con- sidered apart. The most remarkable instance in modern times of a Personal League, is that which was concluded at Paris, (14 Sept. 1815^^) between 12 Droit des Gens, L. II. §190. "Au nom de la tres Sainte et '3 Martens, N. K. II. p. 656. indivisibile Trinity," are prefixed British and Foreign State Papei-s, to the Treaty, which circumstance 1815-1816, p. 211. The words is not without precedent. 330 RIGHT OP TREATY. the Emperor of Austria, the King of Prussia, and the Emperor of Russia ; and which has been designated the Holy Alliance. It was signed in triplicate by the three Sovereigns personally, and does not bear any Ministerial countersignature. It was pubhshed at St. Petersburg, on Christmas Day, 1815, by the Emperor Alexander, accompanied with a Manifesto, annoiuicing that the object of the AUiance was to estabhsh a Christian Fraternity amongst the Nations of Europe. The majority of the Sovereign Princes of Europe subsequently acceded to this AUiance, upon the invitation of one or other of the three Contracting Parties, but the Prince Regent of Great Britain was formally precluded by considerations of Constitutional Law from annexing his signature to it, as appears by his Letter of October 6, 1816. Much has been said of this AUiance both in praise and dispraise of it. It has been extoUed as a declaration of the purest International Morality, it has been condemned as a Monarchical Compact against Popular Liberties. If its history be considered, and its contents examined, it may result that it neither deserves the encomiums bestowed upon it, nor merits the opprobrium lavished against it. It was a romantic effusion of pohtical sentiment on the part of the Emperor Alexander, which had no practical meaning, and which Piince Metternich, Prince Hardenberg, and Lord Castle- reagh combated in vain ; and to which the Emperor of Austria and the King of Prussia unwillingly ac- ceded, from personal considerations towards their aUy. Its tone savours more of a Papal Rescript than a PoUtical Treaty, for the sum and substance of it is to affirm, that the Princes of Evurope and their Peo- ples are members of one Great Christian Nation, and that Peace amongst those members can only be pre- RIGHT OP TREATY. 331 served by the practice of the duties which the Sa- viour of mankind has inculcated. Kl^ber regards the Holy Alliance as the formal apphcation of Christ- ian Morality to the Government of mankind, and to the mutual intercourse of Nations. Its place in the system of the Pubhc Law of Europe was fixed by the Protocol of 15 Nov. 18 18, signed by the Plenipo- tentiaries of Austria, France, Great Britain, Prussia and Riissia, assembled in conference at Aix-la-Cha- peUe, in which it is spoken of as forming " a bond of Christian Fraternity amongst the Sovereigns them- selves^*." The declaratory part of the Treaty is as follows : " Declarent solennellement, que le present Acte ri'a pour objet que de manifester, h, la face de rUnivers, leur determination inebranlable, de ne prendre pour rfegle de leur conduite, soit dans I'admi- nistration de leurs Etats respectifs, soit dans leur relations politiques a^'ec tout autre gouvernement, que les preceptes de cette Religion Sainte, preceptes de justice, de charity, et de paix, qui, loin d'etre unique- ment appHcables ^ la vie privee, doivent, au con- traire, influer directement sur les resolutions des Princes et guider toutes leurs demarches, comme etant le seul moyen de consohder les Institutions humaines et de rem^dier h. leurs imperfections^^." § 2 1 5. The Holy Alliance was so singular in its con- History of ception, and its political import was so totally different Alliance^ in fact from what has been generally supposed, that it may not be superfluous to give a short account of it. '4 Qu'elles sont fermement de- venue plus forte et indissoluble cidees h, ne s'ecarter ni dans leurs par les liens de fraternity Clire- relations mutuelles, ni dans celles tienne que les souverains ont qui les tient aux autres ^tats, du formes entre eux. Martens, principe de TUnion intime, qui a N. R. IV. p. 555. preside jusqu'ici a leurs rappoi-ts '5 Martens, N. R. II. p. 657. et interets communs ; union de- 332 RIGHT OF TREATY. The Emperor Alexander of Russia was liable to periodical accesses of political excitement, which breathed sometimes the Spirit of Absolute Monarchy resting on Divine Right, at others savoured of the lessons which he had early imbibed in an opposite spirit under the tuition of La Harpe. It was under the influence of strong excitement of the former cha- racter, that he communicated to his two Allies at Paris his project for the estabhshment of a Christian Fraternity amongst the Sovereigns of Europe. Both these Monarchs endeavoured in vain by reasoning with their august Ally to persuade him to abandon his project, and the arguments of their Ministers, Prince Metternich and Prince Hardenberg, as well as of Lord Castlereagh, who represented the Prince Regent in the Conferences at Paris, had as little weight with him as the intercessions of the Sove- reigns. So excited indeed was the imagination of the Emperor Alexander by the general opposition to his views, that the Emperor of Austria expressed to Prince Metternich and Lord Castlereagh his convic- tion, that, if the Allies persisted in refusing altogether to sanction the Emperor's project, the effect might be seriously prejudicial to his mind. It was determined accordingly, with a view to deprive the AUiance of all substantial importance as a Political Act, that it should receive the signatures of the Sovereigns alone, without any Ministerial counter-signature. After the document had been drawn up and signed by the three Sovereigns, a copy was transmitted to Lord Liverpool, who was the Chief of the British Cabinet, by Lord Castlereagh, accompanied by an autograph letter ad- dressed to the Prince Regent, written by the Emperor of Russia himself and signed by the three AUied Sovereigns, in the following terms ; — EIGHT OF TREATY. 333 Paris, le 26 September, 1 815. MONSIEUE NOTEE PebEE ET CoUSIN^ Les evenemenSj qui ont afflige le monde depuis plus de 20 ans, nous ont convaincu que le seul moyen d''y mettre iin terme se trouvoit dans FUnion la plus franehe et la plus intime entre les Souverains, que la Divine Providence a place a la tete des Peuples de FEurope. L^Histoire des 3 annees memorableSj qui viennent de s'ecoulerj atteste les effets bien- faisants, que cette Union a produit pour le salut de I'humanite, mais afin d'assurer k ce lien la solidite que reclame imperieuse- ment la grandeur et la purete du but, vers lequel il tend, nous avons pense qu^il dut etre fonde sur les prineipes saeres de la Religion Chretienne. Profondement penetre de cette importante verite, nous avons conclu et signe FActe, que nous soumettons aujourd^hui a la meditation de votre Altesse Royale. EUe se persuadera qu^il a pour objet de rafFermir les rapports qui nous unissent, en formant de tons les Peuples de la Chretiente une seule et meme Famille, et en leur assurant par la, sous la protection du Tout-Puissant, le bonheur, le salut, les bienfaits de la paix et des liens de fratemite a jamais indissolubles. Nous avons vivement regrette que Votre Altesse Royale n^ait point ete reuni avec nous dans le grand moment oil nous avons conclu cette Transaction. Nous Finvitons comme notre premier et plus intime Allie a y accorder, et a completer une ceuvre uni- quement consacre an bien de Fhumanite, et que nous devons des lors considerer comme la plus belle recompense de nos efforts. PRANCOIS. FREDERIC GUILLAUME. ALEXANDRE. Notre Fr^re et Cousin, Le Prince Regent de la Grand Bretagne. Lord Castlereagh at the same time took the pre- caution of transmitting the draught of an innocuous answer for the Prince Kegent to send back. This draught underwent a careful revision at the hands of 334 RIGHT OF TREATY. Lord Liverpool, and the contents of it, as ultimately settled, were as follow : — Carlton House, 6th Oct. 1815. SiE, My Brothee and Cousin, I HAVE had the honour of receiving your Imperial Majesty's Letter, together with the Copy of the Treaty signed by your Majesty, and your August Allies, at Paris, on the a6th of September. As the forms of the British Constitution, which I am called upon to administer in the name and on the behalf of the King, my Father, preclude me from acceding formally to this Treaty, in the shape in which it has been presented to me, I adopt this course of conveying to the August Sovereigns who have signed it, my entire concurrence in the principles they have laid down, and in the declaration which they have set forth, of making the Divine precepts of the Christian Religion the invariable rule of their conduct, in all their relations, social and political, and of cementing the Union which ought ever to subsist between all Christian Nations ; and it will always be my earnest endeavour to regulate my conduct, in the station in which Divine Providence has vouchsafed to place me, by these sacred maxims, and to cooperate with my August Alhes in all measures which may be likely to contribute to the peace and happiness of mankind. With the most invariable sentiments of friendship and affection, I am. Sir, My Brother and Cousin, Your Imperial Majesty's Good Brother and Cousin, GEORGE P. R. His Imperial Majesty the Emperor of Austria. TheFamiiy §2i6. The Treaty of Friendship and Union con- thTnousf cKiled at Paris (August 15, 1761'") by the Plenipo- ofBourbon. teutiarics of the Very Christian King and the Catholic 1^' Martens, Eecueil, I. p. 16. RIGHT OF TREATY. 335 King, is an instance of a Family League, which may- be regarded as an enlarged form of a Personal League. The object of this Treaty, which is expressly desig- nated in the Preamble as a Family Compact, was to establish a perpetual aUiance between the French and Spanish branches of the House of Bourbon, and to afford to either Crown a reciprocal guaranty of aU its possessions wheresoever situated. The simple de- mand of succour on the part of either Crown was to constitute a casus foederis without the necessity of any explanation. Provision was made by the nine- teenth article of the Treaty for the admission of the Neapohtan branch of the House of Bourbon. Although this Treaty was made by the two Sovereigns on be- half of themselves and their Successors, and so far in terms satisfies one of Vattel's definitions of a Real Treaty^'' ; yet the subject of it discloses the intention of the Contracting Parties to confine its benefits to the House of Bourbon, so clearly, that it may be re- garded as altogether exceptionaP^, seeing that it con- tains an express provision (Art. XXI), that no other Powers than those which may be of the House of Bourbon, can be invited or admitted to accede to it. Accordingly we find, when His Catholic Majesty made a formal application to Louis XYI of France in 1790 17 Droit des Gens, L. II. § 188, to their own persons, or their De meme, lorsqu'un roi diJclare families, and this they may law- dans le traite, qu'il le fait pour fully do as the welfare of the lui et ses successeurs, il est mani- State is interested in the safety feste que le Traits est rdel. II and advantage of the Sovereign, est attache S, I'Etat, et fait pour properly understood. These trea- durer autant que m^me 1^ roy- ties are personal in their own aume. nature, and expire of course on '8 Kings do not always treat the death of the King or the ex- solely and directly for their King- tinction of his family. Such an doms. Sometimes by virtue of alliance is made for the defence the power they have in their of the King and his Family. — hands, they make treaties relative Vattel, L. II. § 1,95. an< 336 EIGHT OP TREATY. for aid, in pursuance of this Treaty, in defence of his possessions on the West Coast of North America against Great Britain ; the National Assembly, to which body Louis XVI was obhged, under the altered condition of the Monarchy in France, to submit the letter of the King of Spain, demurred to the applica- tion, considering the FamUy Compact between the two Crowns not to be identical with a Public Treaty between the two Nations ^^ Treaties of §217. The object of aU Loagues is the promotion id Com- of Society amongst Nations, and this Society relates ^™®' either to peaceful Commerce, or to community of War^. Leagues which relate to Commerce may be of various kinds. The rudiments of Commercial Leagues may be traced in the stipulations between Nations for the hospitable reception of Strangers, and the distinction between the foreigner regarded qu^ ISap^apoi, and the foreigner regarded qua ^evo^, con- sisted in the circumstance, that the latter had a claim of Right to Hospitality, which the former had not. An early example of this kind of League may be seen in the Treaty concluded between Alyattes King of Lydia and the Citizens of Miletus, whereby it was provided that the two Nations should be the guests and allies of one another ^\ As soon as the security of private intercourse be- tween the individual members of different Nations had been established, the commercial interchange of commo- dities for the most part followed in the wake of Hospi- tality. Foreign commerce thus sprang up, and in many States where foreign commerce became important, it was found necessary to place it under regulations, ■9 Twiss on the Oregon Ques- ^o Puffendorf, c. 8, c. 9. tion, London, 1846, p. 112. An- -' Herodot. Hist. L. I. § 22. nual Register, 1790. p. 303. EIGHT OF TEEATY. 337 and wherever Taxation became an engine of State government, duties or tolls came to be imposed upon foreign merchants frequenting the ports of a State. Treaties of Navigation and of Commerce thereupon came to be agreed upon between Nations, whereby it was provided that the subjects of the one Power might safely trade in the ports of the other Power on condition of paying customary tolls, or of paying not more than a fixed toll, or of paying not more than was paid by subjects or favoured Allies. A Treaty of Navigation and Commerce may be for a term of years or for an indefinite period ; it may provide for trade merely, as for instance for the im- portation and exportation and transit of particular merchandise, for the port-dues, and transit-dues, and custom-dues, to be levied thereupon ; or for the in- cidents of trade in connexion with the residence of merchants ; as for instance, the exercise of jurisdic- tion, the practice of religion, the payment of personal taxes. The provisions of a Treaty of Commerce may extend even further, and may apply to the contin- gences of war breaking out between the contracting parties and a third Power, or between Powers which are strangers to the contracting parties. Thus it may be provided that, if war should break out be- tween the contracting Powers, the subjects of either Power, resident in the territory of the other Power, should be allowed an interval of time to collect their goods and effects, and to withdraw in safety to their own country ^^ ; or it may be provided, that if war should break out between one of the Contracting Powers and a third Power, that certain goods shall ^- Such Stipulations have be- Commentaries, I. § 56. Martens come an accustomed formula in Precis, § 259. Bynkershoek, Qu. Commercial Treaties. — Kent's Jur. Publici, L. I. c. 7. PART I, Z 338 RIGHT OF TREATY. not be regarded by the former as Contraband of War, or that certain vessels shall not be hable to search or seizure by the former, if laden with cargoes belonging to the subjects of any third Power, or that Privateers shall not be allowed to be fitted out or provisioned in the ports of one of the contracting parties by any Third Power engaged in war with the other contract- ing party ^^ Again, it may be provided in case of war breaking out between Powers which are Strangers to the contracting Parties, that the latter wiU maintain the security of their mutual commerce on the High Seas by an armed force, if it should be required ; or that debts due from the individuals of the one Nation to individuals of the other, and the shares or money which they may have in the public funds, or in pubhc or private banks, shall never in any case of war be se- questrated or confiscated ; or that foreign subjects shall be permitted'^* to remain and continue their business (if it be other than that of commerce on the high seas), notwithstanding a rupture between the Go- vernments, so long as they conduct such business innocently ^^. A Nation may enter into a Treaty by which it grants exclusive privileges of trade to one Nation, and deprives itself of the Hberty to grant similar privileges to another. Of this kind was the famous Methuen Treaty 2*^, concluded between Great Britain and Por- tugal (27 Dec^ 1703), whereby Portiigal obtained a ^3 Treaty between France and 25 Treaty between the United the United States of America, States of America and the Re- 6 Feb. 1778. Martens, Kecueil, public of Chili, 16 May, 1832. 11^ P- 595- Martens, N. E. XI p. 439. The ^4 Treaty between Great Bri- provisions of this Treaty deserve tain and the United States of attention, as they are most corn- America, 19 Nov. 1794. Martens, prehensive. Recueil, V. p. 662. Grotius de 26 Chalmers' Collection of Jure B. et P. L. III. c. 20. § 16. Treaties, T. II. p. 305. RIGHT OP TREATY. 339 preferential scale of duties for her wines in British markets, whilst Great Britain, on the other hand, ob- tained what she considered to be a satisfactory equi- valent, by securing the opening of the Portuguese markets for her wooUen manufactures. It was for- merly the policy of the Christian Nations of Europe to obtain exclusive privileges of trade by Treaties with Asiatic and African Nations. Thus the Dutch engrossed to themselves the trade in cinnamon and other produce of the island of Ceylon, by a Treaty with the King of Candy ^'. An opposite pohcy now prevails ; and we find accordingly Great Britain tak- ing care to recite in her Treaty ^^ with Chuia, that the Five Ports had been declared to be open to the trade of all Nations heretofore trading at Canton, and stipulating only for her own subjects the same pri- vileges, as should at any time be accorded to the Subjects of other Powers. § 218. Treaties of Jurisdiction are for the most part Treaties of of two kinds : they either provide for the establish- tio™ '° ment of special tribunals for the adjudication of all questions which may arise amongst foreign merchants, or between foreign merchants and the Subjects of the State wherein such merchants carry on their trade; or they provide for the exercise of jurisdiction by Consuls or Commercial Agents over their own coun- trymen within the territory of the State wherein they carry on their trade, or over their own country- men and the subjects of such State, in matters of trade which may come into dispute between them. A foreigner, under the Common Law of Nations, may ^^ Traits de Paix entre la -» Supplemental Treaty of Hollande et le Eoi de Candy, Houmon-Schai, (8 Oct. 1845). (14 Feb. 1766). Martens, Re- Martens, N.E, Gen. T. V. p. 595. cueil, T. I. p. 319. Z 2 340 EIGHT OF TREATY. sue a Subject of the State wherein he resides in the Courts of that State, and he may be sued in those Coiu-ts by Subjects of that State. A foreigner may in hke manner sue a foreigner in the Courts of a State wherein they are both resident. Jurisdiction, as between Nations being territorial is founded by the presence of an individual within the territory of a Nation. The Tribunals however of a State are not under any obhgation to administer the Law of a Foreign State, unless there be a Treaty between the States to that effect. In the cases where Treaties provide for the erection of tribunals, to decide aU controversies between Strangers (transeuntes) who are not domi- ciled, such tribunals administer the Foreign Law, if it be invoked to settle the dispute. Thus there were Treaties between Great Britain and PortugaP', and between Great Britain and Spain ^'', and between France and Spain, and between France and Portugal, and between Spain and Portugal, under which spe- cial tribunals were provided, over which a Judge Conservator was appointed to preside ; whose func- tion it was to decide all disputes in commercial mat- ters, which might arise between the Subjects of the respective States. If, however, a Natural bom sub- ject of Great Britain or of France, had acquired a Domicil in Spain or Portugal, he became amenable to the ordinary tribimals of either country ^^ in any controversy with the Subjects of that country. On -9 Treaty of Westminster, lo July 3, 1842. Hertslet,VI. p. 598. July, 1654. Hertslet, II. p. 8. 3° Treaty of Madrid, 23 May, Treaty of Eio Janeiro, 19 Feb. 1667. Hertslet, IF. p. 140. 1810. Hertslet, VI. p. 28. Mar- Treaty of Utrecht, 9 Dec. 1713. tens, N. R. III. p. 194. These Hertslet, II. p. 205. engagements have been deter- 3" Foelix, Droit International mined by the Treaty of London, Pi-ive, § 1 48. EIGHT OF TREATY. 341 the other hand. Treaties provide sometimes for the exercise of an alternative Jurisdiction, as for in- stance, the Treaty of St. Petersburg '^ concluded between France and Russia, (ii Jan. 1857,) provided that the Consuls of either Power should exercise an exclusive jurisdiction over the masters and crews of the vessels of their own Nation within the Ports of the other Nation ; and should exercise a voluntary jurisdiction over merchants of their own Nation, which, if such merchants had recourse to it, the Government of the country to which the Consuls were accredited should enforce ; but such merchants might, if they were so minded, in the first instance, have recourse to the ordinary tribunals of the coun- try, which by the local law were empowered to take cogTiizance of commercial matters. Russia, at the period when this Treaty was concluded, was in sub- stance an Oriental Power, and there are accordingly found in this Treaty a variety of provisions, which are affirmations of the Common Law of Nations, as then received in Western Europe ; which, however, had not at such time acquired the sanction of Usage, as a rule of intercourse between Russia and the Western Powers. Treaties which give an exclusive authority to the Consuls and Commercial Agents of a Nation to de- cide aU disputes amongst merchants of their own country, and between merchants of their own country and the Subjects of the State to which they are ac- credited, are for the most part founded on a necessity arising out of the great discrepancies which exist between the Laws of the respective Nations in Civil and Criminal matters. The Christian Powers of Eu- rope have from a very early period entered into 32 Martens, Recueil, IV. p. 196. 342 EIGHT OF TREATY. Treaties of tliis kind with the Ottoman Porte^', and with its Dependencies on the Barbary Coast'^, under which the Consuls of such Powers have exercised an exclusive jurisdiction over their own coimtrymen in all matters of difference amongst themselves. Trea- ties for an analogous purpose have been within recent time concluded between Great Britain and China^^ (29 July, 1843,) and between Great Britain and Japan'^ (26 August, 1858,) with the further provi- sion, that all controversies arising in China or in Japan, between British and Chinese Subjects on the one hand, and between British and Japanese Subjects on the other, shall be determined by the British Con- sul, assisted in the one case by a Chinese, in the other by a Japanese Officer. The Jurisdiction over British Subjects in Criminal matters is to be exercised exclu- sively by the British Authorities, even in cases where British Subjects commit any crime against Chinese or Japanese Subjects, or the Subjects or Citizens of any other country. In the Treaty concluded between the Emperor of China and the United States of America'", (Jvdy 3, 1844,) there is a provision to the effect, that all controversies occurring in China, between Citizens of the United States and the Subjects of any other Government, shall be regulated wdthout any regard to the Chinese Authorities, or without any interven- tion on their part. It is the practice of France, m accordance with the prmciples of her Civil Law, to conclude Treaties with Foreign Powers, whereby Ju- risdiction is granted to the Consuls of France over a Hertslet, Treaties, II. p. .[^4. Hertslet, VI. p. 247. 346. 36 Martens, N. R. Gen. XVI. 34 Algiers, Hertslet, I. p. 61, part II. p. 430. 70. Tripoli, ib. p. 127, 146. J7 Martens, N. R. Gen. VII. Tunis, ib. p. i6i, 166. p. 134. i^ Martens, N. R. Gen. A', p. EIGHT OP TREATY. 343 French merchant vessels, in regard to any difference which may arise between the Captain, Officers, and Crews of such vessels, either on the High Seas or in the Ports of such Powers, and the aid of the Local Authorities is guarantied to support the Jurisdiction of the Consul, if he shall invoke it'^. § 219. Treaties of Extra-Tradition are another form Treaties of of Treaty, whereby effect is given to the Jiiris- Jition."'''^''" diction of a State over its Subjects, who may have escaped into the territory of another State. The Common Law of Nations regards all Jurisdiction as founded on the possession of territory by an Inde- pendent Commimity. The Legislative Power of the Nation extends over all persons and property within the limits of its territory ; but its laws do not ope- rate vigore suo beyond its territory. Crimes against its Laws are altogether local, and cognisable only in the country in which they are committed. No other Nation, therefore, has any right to punish them, nor is under any obligation to take notice of them, neither is any other Nation bovmd to enforce any judgment rendered in such cases by the tribunals havuig au- thority to hold jurisdiction within the territory, wherein they have been committed^*. Such has been the tenour of a long course of decisions in British Courts of Law. " Penal Laws of Foreign Countries are altogether local," says Lord Loughborough'"', " and affect nothing more than they can reach, and can be seized by virtue of their authority." Mr. Justice BuUer in the same case upon a Writ of Error*', says, ■*' Tlie Convention of 23 Feb. '9 Stoi-y, Conflict of Laws, 1853, between France and the § 620. United States of America, con- 4^ Folliott v. Ogden, I. H. tains this amongst other special Blackstone, p. 13^5. engagements. Treaties of tlie United States, p. 114. Wheaton's Reports, p. 733. Elements, 1857, p. 171. 344 RIGHT OF TREATY. " it is a general principle that the Penal Laws of one Country cannot be taken notice of by another Coun- try." A similar doctrine has been frequently recog- nised in the Courts of the United States of America. Thus Chief Justice Marshall*^, in delivering the judg- ment of the Supreme Court, in the case of a foreign vessel engaged in the Slave trade, which had been captured by an American Citizen, said, " the Courts of no Country execute the Penal Laws of another Country." So likewise Chief Justice Spencer, when called upon in the District Court of New York to give effect to a Law of Connecticut, said, " the De- fendant cannot take advantage of, nor expect the Covirt to enforce the criminal Laws of another State. The Penal Acts of one State can have no operation in another State. They are strictly local, and affect notliLng more than they can reach ''^." Civil Law ^ 2 20. Certain Jurists have maintained that a State mans^as to is Under an obligation to punish Fugitives from Jus- Fugitives ^[qq qj-^ ^]^q demand of the State from whose iurisdic- ii?om J us- . 1 n • 1 tice. tion they have withdrawn themselves^ ; m other words, that a State is bound to allow its own Coiu^ to exercise its own Jurisdiction over foreigners in respect of offences committed in Foreign Countries. But these writers rest this question too exclusively on the traditions of the Roman CivU Law, which re- garded the various States of Christendom as succeed- ing to the relations which formerly existed amongst the Provinces of the Roman Empire. But the Roman Law, if carefully examined, suggests another prin- ciple, when it orders Fugitives from Justice to be 4* The Antelope, 10 Wheaton, 44 Hertius de Collisione Legum, p. 123. §4. n. 18. P. Yoet de Stsitut. 43 Scoville V. Caufield, 1 4 John- c. 4. n. 6. son's Reports, p. 338. EIGHT OF TREATY. 345 remitted to the forum delicti. The grounds upon which such remission indeed was founded rest equally upon the Imperial Supremacy, " Jvire tamen civHi no- tandum, remissionibus locum fuisse de necessitate, ut reus ad locum ubi deliquerit, suo petente judice, fuerit mittendus, quod omnes judices vmi subessent imperatori**." It would thus seem that in either case, whether the Criminal was tried in the place where he was found, or sent back for trial to the place where the crime had been committed, the Autho- rity under which the trial or the remission of the Criminal took place was one and the same, namely, the Paramount Authority of the Emperor. ^221. In the case of Nations there is no corre- Common spending Paramotmt Authority to which aU defer, and Nations. Jurists are divided in opinion whether there is any obhgation upon a Nation to deliver up Fugitives from Justice upon the demand of another Nation. States have without a doubt a right to refuse an asylum to the subjects of Foreign States. Martens designates this right as Le Droit de Renvoi*^. From a passage in a letter written by Sir Leoline Jenkins ^'^ at Nime- guen to Mr. Secretary Williamson, (April 3, 1675,) it would seem, as if the early Usage amongst Nations had been for States to decline jurisdiction over fo- reigners altogether, and to send them to their own country to be tried by their Natural Judges, but that such Usage had become obsolete in his time, as he speaks of " the matter of renvoy being disused alto- gether amongst Princes." Certain Jurists however maintain, that according to the usage of Nations, States are obliged to refuse an asylum to the subjects 45 P. Voet de Statutis, s. XI. 0. i. n. 6. 4^ Precis du Droit des Gens, § 91. 6. 47 Life of Sir Leoline Jenkins, vol. II. p. 7 14- 346 RIGHT OF TREATY. of Foreign States, who are accused of crimes which affect the Pubhc Peace and the security of Human Society, and whose surrender to its Ofl&cers of Justice is requested by the State, within whose territory the crime has been committed. Grotius, Heineccius, Bur- lamaqui, Vattel, Rutherforth, Bohmer, Schmeking, Kent, and Homan maintain the aflSrmative side of the question, whilst we find arrayed on the negative side Puffendorf, Voet, Leyser, Martens, Kliiber, Kluit, Saalfeld, Schmalz, Mittermaier, Mangin, Story, Wheaton, Heffiber, Ortolan, and Phillimore. In the conflict of opinion amongst such high authorities we may safely have recourse to the practice of Nations. Great Britain, France, Russia, and the United States of America, have repeatedly declined to surrender up Fugitives from Justice on the demand of Foreign Powers, with which they had no Treaties to that effect, or in cases where the crimes alleged did not come within the scope of any existing Treaty of Extra- Tradition. M. Foelix seems to have stated the practice amongst Nations very correctly, when he says that all Extra-Tradition is subordinate to considerations of convenience and reciprocal interest*®. The authorities of a State are not obhged to surrender up a Criminal for the purpose of Extra-Tradition, except where there exists between two States Treaties formally applicable to the subject matter. Extra-Tra ^2 22. Treaties of Extra-Tradition in their earhest Fu'°tive form appear to have contained stipulations for the Slaves and surrender of fugitive slaves, and Compacts with that serters, a object in view were not unusual amongst the Nations raXot'of of Greece*^. It would appear to have been the prac- Treaty- ^[qq amougst those Nations to afford sanctuary to Engage- ° •' 4^ Traite du Droit Intei-national Prive, L. II. § 6o8. 49 Tlti Livii Historia, L. XLI c. 424 RIGHT OF TREATY. 347, fugitive slaves, unless there was an International Compact to the contrary, or a provision to that effect embodied ia some Treaty of Commerce. It is obvious that wherever Personal Servitude is recognised as a Legal Status, every attempt to change that Status without the legal formalities of Emanci- pation wlU be a crime against the Law of the State, and every fugitive slave will be ipso facto a Criminal according to that law. We find accordingly an article inserted in the Constitution of the United States of America (anno 1787), whereby the respective States have bound themselves to dehver up Fugitive Slaves on the claim of the Slave-Master, notwithstanding the Status of Slavery is not a Legal Status in some of the States. " No person held to service or labour in one State under the laws thereof, escaping into another, shall in consequence of any law or regulation therein be discharged from such service or labour, but shall be dehvered up on claim of the party to whom such service or labour may be due*"." The Treaties in modem times which bear most analogy to the ancient Treaties for the surrender of Fugitive Slaves are Treaties for the Extra-Tradition of Deserters from the military or naval service of a State. It is ahnost the universal practice of civOised Nations to conclude with one another Treaties, which have the latter object in view. The necessity for such Treaties 49 The Constitution of the States, which under the Articles United States, as distinguished of Confederation were declared from the Articles of Confedera- to retain their Sovereignty, Erec- tion, bears some analogy to the dom, and Independence, and Final Act of the Germanic Con- every Power, Jurisdiction, and federation, as distinguished from Eight, which was not by such the Federal Act. The provi- Confederation expressly delu- sions of the Constitution have gated to the United States in all the force of an International Congress assembled. Compact between the respective 348 EIGHT OF TREATY. is obvious between Conterminous States, where their military or maritime service is recruited by forced levies raised either by Conscription or by Impress- ment. Extra-Tra- § 2 23- The earHest Treaties of Extra-Tradition PoiiUcIi amongst the Nations of Europe since the fall of the Offenders, 5,oman Empire appear to have been Treaties between tionai. Conterminous States such as England and Scotland (anno 1308), France and Savoy (anno 1378), for the surrender of Fugitives from Justice, who were charged with the commission of crimes against the peace of Society, such as murder, piracy, robbery, or forgery. M. Foehx has reviewed the various Treaties which exist upon this subject amongst the Nations of Eu- rope, France, Spain, Portugal, the Papal States, Hol- land, Sardinia, Belgium, Switzerland, and Gre.at Bri- tain, have severally entered into Treaties with various other Powers for the surrender of Fugitives from Jus- tice who have been guilty of crimes against the person or against property ; but they have not extended the engagements of such Treaties to persons accused of Political Offences. On the other hand, Russia, Austria, Prussia, and the various other States which compose the Germanic Confederation, the Two Sici- lies, Denmark, Norway, and Sweden, have entered respectively into Treaties for the surrender of Fugi- tives from Jiistice, accused of High Treason against the State from which they have escaped. Amongst the American States we find Treaties of the former kind concluded by the United States, and by Brazil, and of the latter kind by Columbia, by Peru, and by Mexico. It will be seen that the surrender of Pohtical Offenders is rather the exception, than the ride of such Treaties. Every Treaty of Extra- Tradition takes effect in re- RIGHT OP TEEATY. 349 gard to crimes committed before it was concluded, mdess its operation shall be expressly restricted, but with regard to the character of any crime alleged as warranting the demand for the surrender of a Fugitive from Justice, all Treaties of Extra-Tradition are stricti juris, being penal in their character and in exception to the Common Law of Nations. Their operation accordingly may not be extended beyond the letter of their stipulations. ^224. Hefifter has very aptly remarked that the Treaties of very fact of the existence of so many special Treaties dition for respecting the Extra-Tradition of Fugitives from Jus- part^em- tice is conclusive, that there is no such Usage amongst porary. Nations, which constitutes the surrender of such Fugi- tives upon the demand of a State, whose laws have been violated, a perfect obligation upon other States. It is not imimportant to note, that Treaties of Extra- Tradition are for the most part made for a given term of years ; as, for instance, the Treaty between Great Britain and the United States, (19 Nov. 1794^",) was in this respect limited in duration to twelve years. This Treaty having expired in due course, in respect of the XXVIIth Article, which contained the provi- sion for the Extra-Tradition of criminals, the United States accordingly maintained upon a demand being subsequently made by the British Government for the surrender of Daniel Sullivan, a British Subject, the master of a British Schooner, the Maria, who had run away with the Schooner and her cargo, and car- ried them into Mount Desart in the State of Maine, that as the engagement of the Treaty was for a limited time and had not been renewed, the United 50 Martens, Eecueil, V. p. 686. with the commission of murder Art. XXI. provided for the Extra- or forgery within the jurisdiction Tradition of all persons charged of either State. 350 1?TGHT OF TREATY. States were not under any obligation by the Common Law of Nations to restore the vessel and to deliver up the master and crew who had carried her off. Mr. Wirt, the Attorney General of the United States, in the legal opinion which he submitted to his Govern- ment, (Nov. 20, 182 1,) stated, that he considered there was nothing in the Law of Nations, as explained by the Usage and Practice of the most respectable among them, which imposed on the United States any obh- gation to dehver up the Fugitives^'. The Treaty of Washington, sometimes called the Ashburton Treaty, has been subsequently (9 August, 1842) concluded between the United States and Great Britain, under which the Extra-Tradition of the slave Anderson '^ who had escaped from the State of Missouri into Canada, was lately demanded : but there is in this Treaty an express provision that the tenth Article, which provides for the Extra-Tradition of Fugitives from Justice, shall continue in force untU one or the other of the parties shall signify its wish to terminate it, and no longer. The Tenth Article is in the fol- lowing terms : " It is agreed that Her Britannic Majesty and the United States shall, upon mutual requisitions by them or their ministers, officers, or 5' Opinions of the Attorney and directed him to be dis- Generals of the United States, I. charged. The Court of Queen's p. 391. Bench in Canada had refused to 5- The Extra-Tradition of An- grant a Writ of Habeas Corpus, derson was demanded on a charge and the fi-iends of Anderson had of murder. He was not deli- thereupon applied to the Court vered up, as the Court of Com- of Queens Bench in Westminster mon Pleas in Canada^ on motion Hall for the Writ, which was for a Habeas Corprts to discharge granted. Before, however, the him from the custody of the Writ from Westminster Hall gaoler, to which he had been could be served in Canada, the committed under a Magistrate's Court of Common Pleas in that warrant, found that there were Province had ordered the dis- some informalities in the pro- charge of the fugitive, ceedings before the Magistrate, RIGHT OF TKEATY. 351 authorities respectively made, deliver up to justice all persons who, being charged with the crime of murder, or assault with intent to commit murder, or piracy, or arson, or robbery, or forgery, or the utter- ance of forged paper, committed within the jurisdic- tion of either, shall seek an asylum, or shall be found within the territories of the other ; provided, that this shall only be done upon such evidence of Crimi- nality, as according to the Laws of the place where the fugitive or person so charged shall be found, would justify his apprehension and commitment for trial, if the crime or oifence had there been com- mitted ; and the respective Judges and other Magis- trates of the two Governments shall have power, jurisdiction, and authority, upon complaint made under oath, to issue a warrant for the apprehension of the fugitive or person so charged, that he may be brought before such Judges or other Magistrates respectively, to the end that the evidence of Crimi- nality may be heard and considered ; and if on such hearing, the evidence be deemed sufficient to sustain the charge, it shall be the duty of the examining Judge or Magistrate to certify the same to the proper executive authorities, that a warrant may issue for the surrender of such fugitives. The expense of such apprehension and deHvery shall be borne and defrayed by the party who makes the requisition and receives the fugitive ^^." The only other Treaty of Extra-Tradition, in regard to Fugitives from Justice, which Great Britain has entered into with a Foreign State, is the Treaty of London, (13 Feb. 1843,) concluded with France for the surrender in certain cases of Fugitives from Jus- tice. By Art. I. " It is agreed that the High Con- 53 Hertslet, VI. p. 859. Martens, N. R. Gte. Ill p. 456. 352 EIGHT OF TREATY. tracting Parties shall on requisitions made in their name through the medium of their respective Diplo- matic Agents, deUver up to justice persons who, being accused of the crimes of mtirder, (comprehend- ing the crimes designated in the French Penal Code by the terms assassination, parricide, infanticide, and poisoning,) or of an attempt to commit murder, or of forgery, or of fraudulent bankruptcy committed within the jurisdiction of the requiring Party, shall seek an asylum, or shall be found within the terri- tories of the other : provided that this shall be done only when the commission of the crime shall be so estabhshed, as that the laws of the country where the fugitive or person so accused shall be found, would justify his apprehension and commitment for trial, if the crime had been there conunitted. Consequently, on the part of the French Govern- ment, the surrender shall be made only by the au- thority of the Keeper of the Seals, Minister of Justice, and after the production of a warrant of arrest, or other equivalent judicial Document, issued by a Judge, or other competent Authority in Great Bri- tain, clearly setting forth the facts for which the fugitive shall have rendered himself accountable ; and on the part of the British Government, the surrender shall be made only on the report of a Judge or Magis- trate duly authorised to take cognisance of the acts charged against the fugitives in the warrant of arrest or other equivalent judicial document, issued by a Judge or competent Magistrate in France, and likewise clearly setting forth the said acts." " The expense of any detention and surrender made in the preceding Article shall be borne and defrayed by the Government in whose name the requisition shall have been made." BIGHT OP TREATY. 353 " The provisions of the present Convention shall not apply in any manner to crimes of murder, for- gery, or fraudulent bankruptcy committed antece- dently to the date thereof" " The present Convention shall be in force untU the 1st of January, 1844, after which date either of the High Contracting Parties shall be at Hberty to give notice to the other of its intention to put an end to it, and it shall altogether cease and determine at the expiration of six months from the date of such notice^." It will be seen that the stipulations of both these Treaties apply to all persons indiscriminately, who may be charged with any of the enumerated crimes, without any regard to their Nationality. A Conven- tion of Extra-Tradition, comprising a much greater number of crimes, but specially excepting native sub- jects or citizens of the party upon whom the requi- sition may be made, was signed at London (May 28, 1852) between France and Great Britain. It was provided by the Fifteenth Article, that the Conven- tion should come into operation when an Act of Par- liament should have passed to enable her Britannic Majesty to carry into execution the arrangements of the Convention ; but the British Parhament dechned to give the Executive Government the necessary Powers to execute its provisions. The Convention accordingly has remained inoperative. With regard to Treaties for the mutual surrender of criminals, there is a material difference in the power of the Execritive Government, as exercised under the Bri- tish Constitution, and under the American Consti- tution. An Act of Congress was passed on the 1 2 th August, 1848, under which the Executive Govern- 54 Hertslet, VI. p. 345. Martens, N. K Gen. V. p. 20. PART I. A a 354 EIGHT OP TREATY. ment of the United States is empowered to give effect to Treaty -stipulations with Foreign Govern- ments, which provide for the mutual surrender of criminals ; whereas no analogous Powers have been granted by Parliament to the Executive Government of Great Britain, but a special Act of Parliament is required in each case to enable the British Govern- ment to give effect to a Treaty of Extra-Tradition. Such a Treaty, however, will have immediate effect in the Colonies of Great Britain. Treaties of §225. Treaties of Boundary belong to a class of Treaties, which are regarded by Jurists as perpetual in their natiu'e ; so that, being once carried iato effect, they subsist independently of any changes which may supervene m the political circumstances of either contracting party, unless they are mutually revoked. YatteP' speaks of Compacts which have no relation to the performance of reiterated acts, but merely relate to transient and single acts, which are concluded at once, and suggests that they may be more properly called by another name than that of Treaties. Martens^® has accordingly proposed to call them Transitory Conventions, which Wheaton ap- proves. " Les Traites de cession," says Martens, " des limites, d echange, et ceux meme qui constituent une servitude de Droit Public, ont la nature des Con- ventions transitoires ; les Traites d'amitie, de com- merce, de navigation, les aUiances egales et inegales ont ceUe des Traites proprement dits (foedera). Les Conventions Transitoires sont perpetueUes par la nature de la chose." To the same effect Mr. Wheaton^'' says, " General Compacts between Nations may be divided into what 55 Droit des Gens, L. II. §292. 57 Wheaton s Elements, Part 5^ Martens, Precis, § 58. III. c. 2. § 9. RIGHT OF TREATY. 355 are called Transitory Conventions, and Treaties pro- perly so called. The first are perpetual in then- nature, so that, being carried into effect, they subsist independently of any change in the sovereignty and form of Government of the Contracting Parties : and although their operation may in some cases be sus- pended during war, they revive on the return of peace without any express stipulation. Such are Treaties of Cession, Boundary, or Exchange of Ter- ritory, or those which create a permanent Servitude in favour of one Nation within the Territory of another. The principle involved in the doctrine of Jurists, that such Treaties are perpetual in their nature, may be thus stated. The International Acts, which have in view the settlement of a territorial boundary, are in substance Declarations or Recognitions of a Na- tion's title to a given territory, although they assume for the most part the form of Compacts. The form has come into use, partly because articles for the ces- sion of territory or for the settlement of a territorial boundary between beUigerents, are frequently com- prised amongst the articles of a Treaty of Peace, partly because that form has been considered to confer upon the transaction a more binding character, than that which might be supposed to attach to a simple Declaration. But a Treaty of Boundary, as an Agree- ment or Convention, does not exercise any more per- manently binding force upon the parties vigore sua, than any other Treaty. The more correct view would seem to be, that the arrangements under the Treaty derive their character of permanence not from the Treaty, but from the Common Law of Nations, inas- much as when a Nation has once recognised another Nation to be in lawful Possession of a territory, the A a 2 356 EIGHT OF TREATY. Eight of Possession of the latter is thereby established against the former Nation, whatever changes may sub- sequently arise in their mutual relations, as friends or foes. The Common Law of Nations maintains the latter Nation in its State of Possession, whenever such Possession has had a lawful origin, and the for- mer Nation is by that Law for ever precluded from challenging the lawful origin of a State of Possession, which it has once solemnly recognised. Judicial § 226. The Practice of Nations accords perfectly Decisions .•' . . . -, . _,i as to the With the doctnne 01 Jurists in this matter, ihus a obj^t°oT question was raised before an Enghsh Tribunal touch- Certam jj^g ^j^g interpretation of the Ninth Article of the Treaty of 1794'^, between Great Britain and the United States of America, which is as follows : " It is agreed that British Subjects, who now hold lands in the territories of the United States, and American Citizens, who now hold lands in the dominion of his Majesty, shall continue to hold them according to the nature and tenure of their respective states and title thereto, and may grant, sell, or devise the same to whom they please, in like manner as if they were Natives : and that neither they nor their heirs and assigns shall, so far as may respect the said lands and the legal remedies incident thereto, be regarded as AHens." The question raised in the Rolls Court ^^ in this case in 1830 was, whether by the Article above recited American Citizens, who held lands in Great Britain on 28th day of October, 1795, are at aU times to be considered, as far as regards those lands, not as AHens, but as Native Subjects of the Crown of Great Britain." The 28 th Article of the Treaty had declared that 5^ Martens, Kecueil, V. p. 662. 59 Sutton V. Sutton, i Kussell v. Mylne, p. 663. RIGHT OP TREATY. 357 the ten first Articles should be permanent, but the Counsel in support of the objection to the title con- tended that it was impossible to suggest that the Treaty was contimdng in force in i8 13, as it necessa- rily ceased with the commencement of the War ; that the 37 G. III. c. 97. (which was passed to give effect to the Treaty) could not continue in operation a mo- ment longer without violating the plainest words of the Act ; that the word ' permanent' was used not as synonymous with ' perpetual or everlasting' but in opposition to a period of time expressly limited." On the other hand, the Counsel in support of the title maintained, that "the Treaty contained Articles of two different descriptions, some of them being temporary, others of perpetual obligation. Of those wliich were temporary, some were to last for a hmited period, such as the various regulations concerning trade and navigation, and some were to continue so long as Peace subsisted, but, being inconsistent with a state of War, would necessarily expire with the commencement of hostihties. There were other stipulations which were to remain in force in aU time to come, unaffected by the contingency of Peace or War. For instance, there were clauses for fixing the boundaries of the United States. Were the boundaries so fixed to cease to be the boundaries the moment that hostilities broke outr' Sir John Leach, who at such time filled the office of Master of the Rolls, in pronouncing judgment said, " The privileges of Natives being reciprocally given, not only to the actual possessors of lands, but to their heirs and assigns, it is a reasonable construction that it was the intention of the Treaty, that the operation of the Treaty should be permanent and not depend upon the continuance of a state of Peace." 358 RIGHT OF TREATY. "The Act of 57 G. III. c. 95. gives full effect to this Article of the Treaty in the strongest and clearest terms ; and if it be, as I consider it, the true con- struction of this Article, that it was to be permanent and independent of a state of Peace or War, then the Act of Parhament must be held in the 24th Section, to declare this permanency, and when a subsequent Section provides that the Act is to continue in force, so long only as a state of Peace shall subsist, it cannot be construed to be directly repugnant and opposed to the 24th Section, but is to be understood as referring to such provisions of the Act only as would in their nature depend upon a state of Peace. The principle involved in the permanency of this Treaty would seem to be, that the Treaty was in substance a recog- nition of a title to lands on the part of the actual pos- sessors of those lands and their heirs, and that it would be inconsistent with such a recognition for the possessors at any time to be regarded as Aliens in respect of those lands." The American Tribunals have adopted a similar rule of interpretation. Thus Mr. Justice Washington, in dehvering judgment in a case before the Supreme Court of the United States'*, said, " But we are not inclined to admit the doctrine urged at the Bar, that Treaties become extinguished ^jJso facto by war be- tween the two Governments, unless they should be revived by an express or implied renewal on the re- turn of Peace. Whatever may be the latitude of doctrine laid down by elementary writers on the Law of Nations dealing in general terms in relation to this subject, we are satisfied that the doctrine contended for is not universally true. There may be Treaties of '^^ The Society for the Propagation of the Gospel in Foreign Parts, V. the Town of Newhaven. Whcaton's Reports, VIII. p. 494. RIGHT OF TREATY. 359 such a nature as to their subject and import, as that War will put an end to them, but where Treaties contemplate a permanent arrangement of Territorial and other National Rights, or which in their terms are meant to provide for the event of an intervening War, it would be against every principle of just inter- pretation to hold them extinguished by the event of War. If such were the Law, even the Treaty of 1783, so far as it fixed our limits, and acknowledged our in- dependence, would be gone, and we should have had again to struggle for both upon original revolutionary principles. Such a construction was never asserted, and would be so monstrous as to supersede ah. rea- soning. " We think, therefore, that Treaties stipulating for permanent rights and general arrangements, and pro- fessing to aim at perpetuity, and to deal with the case of War as well as of Peace, do not cease on the occurrence of War, but are at most only suspended while it lasts ; and unless they are waived by the Parties, or new and repugnant stipulations are made, they revive in their operation at the rettirn of Peace." ^227. Martens speaks of Treaties which create a Treaties Servitude of Pubhc Law (une servitude du Droit CTeate a Pubhc) in favour of one Nation within the territory of ^p'^j^ifg^ another. The term Servitude is borrowed from the Law. Civil Law of the Romans, where it is used to desig- nate certain forms of iyinocent use ; as for instance, a Right of Way across the land of a neighbour. A Servitude was distinguished by the Roman Jurists from a Right, and in order to convert a Servitude into a Right, some compact or stipulation to that effect was requisite. " Si quis velit vicino aHquod jus con- stituere, pactionibus atque stipulationibus id efficere 360 EIGHT OF TREATY. debet'''." The Right of innocent use is only an Imper- fect Right, but under certain circumstances a Right of Innocent Use may be Hkewise a Right of Neces- sity. Thus the Midchannel of a river may be the territorial botmdary between two Nations, whilst neither Nation may be able to gain access by the River to its own ports owing to the set of the current or the force of the wind without passing over portions of the river which belong to the other Nation ; or the territory of a Nation may be surrounded by the terri- tory of another Nation, and the former may have no means of access to the open Sea without passing over the Territory of the latter Nation. Thus the Terri- tory of the Swiss Confederation is enclosed on all sides by the Territory of other Nations, so that, untU the Treaty of Vienna declared the navigation of the Rhine, amongst the other Great European Rivers, to be free to all Nations, the Swiss Confederation had not any access to the open Sea, except by passing over the territory of another Nation. Again, a Nation may have some portions of its territory separated from the rest of its territory by the territory of another Nation ; thiis the Rhenish Provinces of Prussia are separated by the territories of other German Powers from the North German and PoHsh Provinces of Prussia. Under cir- cumstances of this natmre a Treaty, which creates a Servitude, in other words, wliich establishes a Right of Way across the territory of one Nation in favour of another Nation, is held to create an obligation, which may be suspended indeed by the occurrence of War, but which revives on the retiu-n of Peace. Kliiber has given to the expression Servitucle^'^ a much larger 'i' Justiniaui Inst. L. II, Tit, II. Dc Servitutibus. ''- Droit dcs Gens, § 137, 138. RIGHT OF TREATY. 361 interpretation, so much so, that if his use of the term be correct, it would seem doubtful whether it could be safely maintained, that all Conventions which create a Servitude of PubUc Law in favour of one Nation within the territory of another, are perpe- tual in their nature, and are not extinguished by the event of war. Mr. Wheaton''^ is careful in limiting his own position of law to treaties which create " a periinanent Servitude," about which there can arise no dispute. § 228. The class of International Compacts which Treaties of have hitherto been under consideration are Compacts unequa" which constitute obhgations between the Contracting -^^'*°'=^- Parties absolutely, as between themselves, and with- out any regard to third Parties. There is another large class which remains to be considered, under which Nations contract obhgations towards one an- other iu respect of third Parties, such as Treaties of Alhance, or of Protection, or of Guaranty, or of Subsidy. Treaties of Alhance are subdivided by Grotius into Equal and Uneqvial Treaties. A Treaty of Alliance upon equal conditions is made for the mutual seciirity of the Contracting Parties, and it may be either limited to defensive purposes against a particular Enemy, in which case it was termed by the Greeks €infjLa-)(la, or it may extend to offensive as well as to defensive purposes, and it was then termed by them rrvixixajia. An equal Treaty of Alhance does not ne- cessarily contain identical conditions for each Party. Vattel draws a distinction between an Equal Treaty and an Equal Alliance. Equal Treaties, he says"*, are those in which the Contracting Parties promise the same things, or things that are equivalent, or finally things that are equitably proportioned, so that the ^3 Droit des Gens, L. II. § 172. ^^4 Elements, Part III. c. 11. § 9. 362 EIGHT OP TREATY. condition of the Parties is equal. Such is, for exam- ple, a defensive Alliance, in which the Parties recipro- cally stipulate for the same succours. Such is an offensive Alliance, in which it is agreed that each of the Allies shall furnish the same number of vessels, or the same number of troops, of cavalry and of infantry, or an equivalent in vessels, in troops, in artiUery or in money. Such is also a League in which the Quota of each of the Allies is regulated in proportion to the interest which he takes or may have in the design of the League. Thus the Emperor of the Germans and the King of England, in order to induce the States- General of the United Provinces to accede to the Treaty of Vienna (lo March, 1731), consented that the Republic should only promise to her Allies the assist- ance of four thousand foot and one thousand horse, though they engaged each to furnish it, in case it should be attacked, with eight thousand infantry and four thousand cavalry. Further, there may be in- cluded in this class Treaties, which stipulate that the Allies shall make common cause with one another, and act with all their forces ; although their forces may be in fact unequal, they are willing in this instance to consider them as equal. Equal Alliances on the other hand, according to Vattel, are those in which an Equal treats with an Equal, no distinction of dignity being made between the contracting Parties, whilst Unequal Alliances are those which make a difference in the dignity of the Contracting Parties. It may well happen indeed that a Treaty of Equal Alliance is not at the same time an Equal Treaty ; but it can rarely happen that a Treaty of Unequal Alliance is not at the same time an Unequal Treaty. Thus a powerful Monarch wishing to engage a weaker State in his interest, offers to it very advantageous conditions, RIGHT OF TEEATY. 363 and promises gratuitous succours, or succours dispro- portionate to those for which he stipulates in return, whilst he claims at the same time a superiority of dignity, and exacts proportionate respect from his AUy. It is this last condition which renders the Alliance unequal ; without such a condition the Treaty would have been unequal, but the Alliance would have been equal. Unequal AUiances are subdivided into those which impair the Independence of one of the Contracting Parties, and those which do not impair it. The In- dependence of a Nation is impaired, when it gives up any of its Natural Rights, or consents to use them in absolute subordination to the will of another Nation. Thus a Nation may agree with another Nation not to make peace with a common Enemy or not to make war upon a third Party, and it does not thereby give up its Independence, but covenants to exercise a Right incident to its Independence under certain restrictions ui favour of its AUy. But if a Nation agrees not to enter into a Treaty of any kiad with any third Party without the consent of its Ally, the former contracts an Unequal Alliance cum diminutione imperii, for it deprives itself absolutely of a power, the possession of which is a condition sine qua non of National Independence. ^229. Treaties of Protection are Treaties in the Treaties nature of Unequal Alliance. They were in frequent use amongst the Greeks and Romans, and the expres- sion in Jidetn se tradere is opposed by Latin authors to the phrase in servitutem se tradere. Thus Phseneas, the envoy of the ^tolians, announced to the Consul AtUius that the object of his Mission was to conclude a Treaty of Protection, and not a Treaty of Subjec- tion to the Romans. " Non in servitutem, sed in 364 RIGHT OF TREATY. fidem tuam nos tradimus, et certvun habeo te impru- dentia labi, qui nobis imperes^." So the Numidians were considered to have placed themselves under Treaty in a relation to the Romans analogous to that in which Chents stood towards their Patrons. " Quo- rum in fide et in ciientela Regnum (Numidia) erat^." "As Private Protection," saysGrotius*', "took not away Personal Hberty, so PubHc Protection does not take away Civil hberty, which cannot be conceived with- out Sovereignty." That the maintenance of National Independence on both sides is not inconsistent with a Treaty of Protection between two States is esta- bHshed by the practice of Nations in. modem times. Thus the City of Danzic, with a territorial radius of two leagues, was placed by the Treaty of Tilsit^, under the Protection of the Kings of Prussia and Saxony, without prejudice to its Independence ; so the free City of Cracow was declared by the Final Act of the Congress of Vienna, to be a Free Indepen- dent and strictly Neutral City under the protection of Prussia, Austria, and Russia. The form, under which Treaties of Protection may be concluded, varies indefinitely. Modern Treaties of Protection, for the most part, provide that the Protecting PoAver shah keep garrison within the Protected State, and this may be considered as the characteristic feattue of a Treaty of Protection as distinguished from a Treaty of Unequal Alliance. Tluis by the Treaty of Tiuin (Nov. 7, jSjjY^, concluded between the King of Sar- dinia and the Prince of Monaco, it is stipulated that the King of Sardinia shall always maintain a garrison "^r Titi Livii Hist. L. XXXVI. '^S Treaty between France and c. 28. Bussia, 7 July, 1807. Martens, 66 Julii Floi-i, L. III. c. I. n. ,^. Recueil, VIII. p 639. ''' De Jure B. ct P. L. I. c. 3. ''9 Martens, Nouveau Supple- §ji. ment, II. p. 243. RIGHT OP TEEATY. 365 of five htmdred men at his own expense in Monaco. The King of Sardinia also undertakes to defend the Prince of Monaco against foreign enemies, to include his name in Treaties of Peace with Foreign Powers, and to allow him to use the Royal Standard of Sar- dinia in time of War, S 2 "^o. Treaties of Subsidy are Treaties under which Treaties ( i, 1 . 1 1 n . Subsidy. a Power, which does not take part m a war as a Principal, furnishes a hmited succour to another power, as an Auxiliary. Treaties of General Alli- ance are to be distinguished from Treaties of Subsidy. When one State stipulates to furnish to another a limited succour of troops in return for an annual pay- ment of money, without any provision in contempla- tion of an eventual engagement in general hostUities, such a Treaty does not render the State which fur- nishes such limited succour, an associate in any war that the other State may undertake. The payment, which the Power, who receives such limited succour, makes in return, is called a Subsidy, and it was at one time the practice both of France and Great Britain to have recourse to Treaties of Subsidy with certain German Powers in order to procure troops to carry on their wars. Of this kind was the treaty of Subsidy concluded between the King of Great Britain and the Landgrave of Hesse-Darmstadt (5th Oct. 1793)™, under which the latter Power undertook to furnish to the former for three years a corps of 3000 troops of all arms for service in any part of Europe, in con- sideration of an annual Subsidy. Under the head of Treaties of Subsidy may be classed the Conventions, which formerly existed between the Helvetic Cantons and various European Powers, under which the former furnished Swiss Regiments for the service of the 73 Martens, Kecueil, V. p. 524. 366 RIGHT OF TREATY. latter Powers. These Conventions are sometimes called Military Capitulations, and such is the name given to a Convention which Spain concluded at Berne (2 Aug. 1804)''^ with the Helvetic Confedera- tion for the continuous services of five Regiments during the space of thirty years. There is another use of the phrase 'Treaty of Subsidy' which must not be overlooked. A Treaty of Subsidy is virtually a Treaty of Alliance, when one Power enters into an agreement with another Power, that the latter shall furnish troops to fight against a Third Power, on condition of the former finding money for the main- tenance of them. A Treaty of Subsidy for such an object is sometimes incorporated with a Treaty of Alliance. Thus we have a Convention of Alliance and Subsidy concluded at Reichenbach (15th Jime, 1813)''^, between Great Britain, Russia, and Prussia, under which the former Power engaged herself to famish 1,133,334 pounds sterling, before the expira- tion of twelve months, and to maintain the Russian fleet, which was at such time in the Ports of Great Britain, at an estimated expenditure of 550,000 pounds sterling. A Subsidy is sometimes an alter- native provision in a Treaty of Alliance. Thus under the Treaty of AUiance concluded at Berlin ^^ (15 April, 1788), between the States-General of the United Pro- vinces and Prussia, the former Power had the alter- native of furnishing money, if it could not furnish troops. A separate Convention of Subsidy is some- times agreed to as supplemental to a Military Con- vention ; this practice is generally observed when all the parties to the Mihtary Convention are not at the same time parties to the Convention of Subsidy. 71 Martens, Recueil, VIII. p. 228. 1- Martens, N. R. I. p. 568. 73 Martens, Recueil, IV. p. 379. EIGHT OF TREATY. 367 Thus after a Military Convention had been concluded between Sardinia, Great Britain, and France at Turin (26 Jan. 1855), a supplemental Treaty of Subsidy was concluded between Sardinia and Great Britain'*, under which the Queen of Great Britain undertook to recommend to her Parliament to advance by way of loan to the King of Sardinia the sum of one mil- lion pounds sterling. The King of Sardinia had agreed, under the previous Military Convention, to furnish for the service of the war against Russia a corps of 1 5,000 men ; and France and Great Britain had in return guaranteed the integrity of the domin- ions of the King of Sardinia, and engaged themselves to defend them against every attack pending the war. ^231. Treaties of Guaranty are Compacts under Treaties ( which a State promises to aid another State, if it "*'^'^" ^ should be disturbed in the enjoyment of a Conven- tional Eight as distinguished from a Natural Right. When a Treaty of Peace is concluded, which proceeds upon a settlement of territorial boundary, it is not imfrequent to invoke the Guaranty of one or more powerful States to maintain the weaker of the two contracting Parties in the State of Possession esta- bhshed by the Treaty. " When those," says Vattel, " who make a Treaty of Peace or any other Treaty are not perfectly easy vdth respect to its observance, they require the Guaranty of a powerful Sovereign. The Guarantee promises to maintain the conditions of the Treaty and to cause it to be observed. As he may find himself obliged to make use of force against the party who attempts to violate his promises, it is an engagement that no Sovereign ought to enter into lightly and without good reason. Princes indeed seldom enter into it, unless when they have an in- 74 Martens, N. K. Gen. XV. p. 613. 368 EIGHT OF TREATY. direct interest in the observance of the Treaty, or are induced by particular relations of friendship. The Guaranty may be promised equally to all the con- tracting parties, to some of them, or even to one of them alone, but it is conmionly promised to aU in general. It may also happen when several Sove- reigns enter into a common alliance that they aU re- ciprocally pledge themselves to each other, as Guaran- tees for its observance. The Guaranty is a kind of Treaty by which assistance and succour are promised to any one, in case he has need of them, in order to compel a faithless AUy to fulful his engagements''^." " The term Guaranty," continues the same writer, " is often taken in a sense somewhat different from that we have given to it. For instance, most of the Powers of Europe guarantied the Act, by which Charles VI had regulated the Succession to his domin- ions, and Sovereigns sometimes reciprocally guaranty their respective States. But we should rather deno- minate those transactions Treaties of Alliance for the purpose, in the former case, of maintaining the Rule of Succession under the Pragmatic Sanction ; and in the latter, of supporting the State of Possession of a Friendly Power'^." To the same effect Kliiber" writes, " L'une des plus usitees des Conventions dont nous nous occupons, est la Garantie proprement dite, par laqueUe un Etat promet de preter secours h. un autre Etat, dans le cas que celui-ci serait lese ou menace d'un prejudice dans exercice de certains Droits par le fait dune tierce puissance. La Garantie est toujours promise par rapport El une tierce puissance, de la part de la- queUe il pourrait etre porte prejudice a des droits 75 Droit des Gens, L. II. c. 15. § 235. 7(5 Ibid, § 228. 77 Ibid. § 157-159. RIGHT OF TREATY. 369 acqiiis." " Lorsque la Garantie est destinee a assurer rinviolabilite dun Traite, elle forme toujours une obligation et un Traite accessoire (pactum acces- sorium), meme quand elle ferait partie de I'acte de la Convention principale.". . . § 159. " Les Garanties sont g6n6rales ou speciales, selon que tous les droits d'une espfece determinee, ou toutes les possessions d'un Etat, ou toutes les stipulations contenues dans \\n Traits, ou bien une partie seulement de ces droits, possessions, ou stipiilations, sont garantis. Tantot elles sont stipul6es pour toujours, tantot pour un temps determine. Dans le cas d'une lesion relative k I'objet garanti, ne fut elle meme qu'imminente en- core, le Garant, sur I'invitation que doit lui en 6tre faite, est tenu de preter le secours promis, a mesure cependant que le provoquant en garantie aurait lui- meme le droit de defense, ou de se faire raison h soi- m^me, et toujours sans porter prejudice aux droits d'un tiers (salvo jure tertii). Le garant n'a ni droit ni obligation de faire davantage que de preter I'assist- ance promise." An International Guaranty is thus strictly con- cerned with International Rights, even where the subject of the Guaranty may be a Rule of Succession, as in the case of the Pragmatic Sanction of Charles VI, or the undisturbed possession of Territory as in the case of the Germanic Confederation, equally as when it is given by a third party to a Treaty of Peace, such as the Guaranty of his Britanic Majesty to the Treaty of Peace made at Utrecht in 1 7 1 5 be- tween the Crowns of Spain and Portugal. For in- stance, when Foreign Powers were invited to gua- ranty the Pragmatic Sanction, it was not intended that such Guaranty should affect the Political Inde- pendence of the Austrian Crown, so as to limit in PART I. B b 370 RIGHT OF TREATY. any way its right to rescind or modify the Rule of Succession ; but that the Guarantying Powers should support the daughter of Charles VI against any Fo- reign Power, which should attempt in its character of a Foreign Power to disturb her in the peaceable enjoy- ment of the Eights secured to her by the Pragmatic Sanction. No rule of International Law is more clear than that a Convention of Guaranty nude and absolute does not apply to the case of Political changes. If, for instance, Denmark had guaranteed to the Princess Anne of England the \mdisturbed possession of the British throne upon the death of William III, contra qvoscunque, no casus foederis would have arisen if the Highlanders of Scotland had attempted to restore the Crown to the son of James II ; but if Louis XIV or Philip V, as Foreign Powers, had sent an army to cooperate with the insurgents in depriving the Princess Anne of the Succession, there would have been at once an undeniable Casus Foederis. Even an expression so indefinite as contra quoscunque is Hmited by the nature of the subject matter ; it may apply to the slightest International interference, from whatever quarter it may be threatened, but even a Civil War will not extend its operation to Political troubles. Such an expression is found in the eleventh article of the Treaty of Gottorp of 26th June, 17 15, con- cluded between the King of Great Britain, as Duke of Brunswick, Luneburg , (Elector of Hanover), and King Frederick IV of Denmark, by which "his Royal Majesty in Great Britain engages and obliges him- self, for his heirs and successors, to maintain King Frederick IV, his heirs and successors, in the occupa- tion, enjoyment, and possession of the Ducal part of the RIGHT OF TREATY. 371 Duchy of Schleswig contra quoscunque in the most effective manner, and to guaranty assistance ; and to that end on every occasion when need shall require it, and it shall be demanded of His Royal Majesty in Great Britain on the part of the King of Denmark, within six weeks a die requisitionis to furnish without fail the assistance determined in the next preceding article, and otherwise, according to the exigency of circumstances, to assist with all his might and all his power." In consideration of this Guaranty Denmark gave up to the Elector of Hanover the Duchies of Bremen and Verden which she had conquered from Sweden in 17 12, and which Hanover has retained down to the present day ; and Hanover on her part united her forces with those of Denmark, and thereby contributed to bring about the Treaty of Stockholm, of June 3, 1720, and which Denmark would not consent to ratify, untU she had obtained the separate acts of Guaranty on the part of the Kings of Great Britain and France on the 26th July and 8th August of the same year'^ A Guaranty being given in favour of one of the Contracting Parties to a Territorial settlement, does not authorise the Guarantying Power to interfere in the enforcement of the settlement, unless his inter- ference should be invoked. If the Contracting Par- ties choose to vary the settlement, they have a right to do so, and the Guarantying Power cannot oppose it ; the obHgation upon the latter to support the Party who should complain of the infringement of the settlement, does not carry with it a right to inter- fere without invitation ; for the Guaranty was not ^^ Twiss on the Kelations of mark and the Germanic Con- the Duchies of Schleswig and federation, p. 124. Holstein to the Crown of Den- B b 2 372 EIGHT OF TREATY. given for the advantage of the Guarantying Power, otherwise it would have been a Principal in the Con- tract. VatteF^ observes, that it is of great importance to keep in mind the distinction in this respect, be- tween a Treaty of Guaranty and a Treaty of Alliance, lest under colour of a Guaranty, a powerful Nation should claim to be arbiter of the affairs of its neigh- bours, and pretend to give law to them. Dr. Phillimore"" seems to doubt the soundness of the position, that a Convention of Guaranty does not apply to Political changes, and lays stress upon a passage in VatteP', in which that writer says, " An Ally ought doubtless to be defended against every invasion, against every foreign violence, and even against his rebellious Subjects." It may however well happen that Sovereign Princes are at Hberty to enter into Treaties of Alliance for mutual assistance against their own Subjects, if they should revolt ; as, for instance, the Sovereign Princes and Free Cities of Germany have entered into a League ^^ under which they have bound themselves to intervene, if the Sub- jects of any Confederate State should revolt, and yet it may consist with Reason, that a Convention of nude and absolute Guaranty, contra, quoscunque, will not extend to Political Troubles. Again, the second Treaty of Barrier^, (30 Jan. 1713,) mider which the Dutch engaged themselves to give aid to Queen Aime and her Successors to the British Crown, being Protestants, according to the order of Succession as estabhshed by the Parliament of England, against aU 79 Droit des Gens, L. II. c. 1 6. Confederation. Art. XXV, and §286. XXVI. Martens, N.K.V. p. 489. 80 Commentaries on Interna- 83 Schmauss, Corpus Jur. p. tional Law, T. II. pp. 72, 75. 1287. Dr. Phillimore refers to 8' Vattel, L. II. c. 12. § 197. this Treaty, which Lord Liver- **- Final Art. of the Germanic pool terms a Defensive Alliance. EIGHT OF TEEATY. 373 such States and Persons as should attempt by open war, or by secret conspwacy, or by treason to set aside the Succession so estabhshed, is reHeved of all ambiguity by its very speciahty ; for it is not a Treaty of nude and absolute Guaranty, contra quos- cunque, but a specific Treaty, of Aid and Succour, (ipsi Reginse opitulaturos ad pugnandum pro jure Successionis ad Coronam,) promised to the Queen herself, and after her death to her lawful heirs, under circumstances specified either of Foreign war, or of Civil tumult. The Treaty concluded in London^* on the 7th May, 1832, between France, Great Britain, and Russia on one part, and Bavaria on the other part, provides that Greece, under the Sovereignty of Prince Otho, and under the Guaranty of the three Courts, should form a Monarchical and Independent State. It is obvious, that such a Guaranty cannot be construed as a Guaranty to King Otho against a Rebellion of his Subjects, but only as a Guaranty of the Independence of his Throne ; which is a matter strictly within the province of an International Guaranty. f 232. Treaties of Neutrahty are Treaties under Treaties of which either the absolute Neutrality of a Nation is *" ™ *^' agreed upon, or particular acts of Neutrahty on its part are covenanted for. The Swiss Confederation, and the Kingdom of Belgium are States, of which the absolute Neutrality is made a matter of Treaty- stipulation between aU the Great Powers of Europe. Accordingly, no State is entitled to demand of either of these States under the General Law of Nations, that it should allow a free passage to its troops for belhgerent purposes through its Territory. In the case of Nations which have agreed to observe par- 84 Martens, N. Kecueil, X, p. 550. 374 RIGHT OF TREATY. ticular acts of Neutrality, such obligations have refer- ence for the most part to Eights under the General Law of Nations, which a Neutral Power has an option to enforce or not, as it shall think fit. Such, for instance, were the provisions of the Treaty^' of Amity, Commerce, and Navigation, concluded between Great Britain and the United States of America, 19 Nov. 1794, but not ratified by the latter Power untU 28th Oct. 1795. By the Twenty-fifth Article of this Treaty it was provided, " that neither of the said Parties shall permit the ships or goods belonging to the sub- jects or citizens of the other, to be taken within cannon shot of the Coast, nor in any of the Bays, Ports, or Rivers of their Territory by ships of war, or others having commission from any Prince, RepubHc, or State whatever. But in case it should so happen, the Party, whose Territorial Rights shall thus have been violated, shall use its utmost endeavours to obtain fi-om the offending Party, full and ample satis- faction for the vessel or vessels so taken, whether the same be vessels of war, or merchant vessels." There have been Treaties of Armed Neutrality between Neutral States, pending war between belli- gerent Powers, the object of which has been to give mutual aid to each other in maintaining the Rights of Neutrals under the General Law of Nations. These and other matters touching Neutrality will be more fully discussed in their appropriate place in a future Chapter, in connection with the Rights of Nations in time of War. Conclusion §233. There are certain International Compacts or fioation of Conventions which are distinguishable from Treaties Treaties. (Yoddersk) properly so called ; being concluded not in virtue of an express delegation of Full Powers from a 85 Mtu'teuSj Kecucil, V. p. 68. RIGHT OP TREATY. 375 Nation to that purpose, but in virtue of an implied delegation of Full Powers, as incidental to an Official Station. Thus the Commander of an army has an implied delegation of Full Powers to suspend or Hmit the operation of hostilities, by means of Truces for the suspension of arms, Cartels for the exchange of pri- soners, and Capitulations for the surrender of troops or fortresses. Conventions for such purposes do not require any Ratification on the part of the Supreme Power of the State. It is otherwise, however, with regard to a definitive Treaty of Peace. A defini- tive Treaty of Peace, according to the usage of Na- tions, requires Ratification, and although every Treaty is operative from the date of its signature, unless it contains an express provision to the contrary, yet its operation is suspended until the exchange of Rati- fications shall have taken place, whereupon the Treaty acquires validity from the date of its signature. There is, however, an exception to the rule of a Treaty taking effect from the date of its signature in regard to treaties stipulating for the Cession of Terri- tory. In the case of such Treaties they only take full effect upon the actual Cession (traditio) of the Ter- ritory itself Thus the National Character of a Ter- ritory for commercial purposes continues unaltered, notwithstanding it may have been ceded by Treaty, as long as it continues in the actual possession of the State which has agreed to cede it*®. Upon the actual change of the State of Possession, the National Cha- racter of the inhabitants undergoes a corresponding change. It may happen after a Treaty has been signed by the Plenipotentiary of a Nation, that grave circumstances occur, under which the provisions of the Treaty may be likely to have a prejudicial effect 8'5 The Fama, 5 Robinson, p. 106. 376 RIGHT OF TREATY. upon the interests of that Nation, which were not known at the time of signature. Under such circum- stances the Sovereign Power of a Nation is by Usage justified in declining to ratify the Treaty. Thus the King of the Netherlands refused in 1841 to ratify a Treaty for the incorporation of Luxembourg into the Customs' Union of the Germanic States on the ground of the injurious effects which it was likely to exercise upon the commercial interests of his subjects, which had been brought to his knowledge subsequently to the signature of the Treaty. So the King of the French declined in 1841 to ratify the Quadruple Treaty for the suppression of the Slave Trade on ac- count of the objections raised against it in the French Chambers. So Great Britain declined in 1859 to ratify a Treaty which her Minister Plenipotentiary had concluded with Nicaragua, and Nicaragua in the same year declined to ratify her Convention with Great Britain for the settlement of the Grey Town and Mosquito Question. If, however, there should be an express provision that the preliminary engage- ments shall take effect immediately without waiting for the exchange of Ratifications, such a Treaty will be an exception to the rule. We have an instance of such a Treaty in the Convention concluded at Lon- don''^ (15 July, 1840) for the pacification of the Levant between Great Britain, Atistria, Prussia, and Russia, on the one part, and the Ottoman Porte on the other, to which there was annexed a Reserved Protocol of the same date, providing that the preliminary mea- smres, mentioned in the Second Article of the Conven- tion, should be put into execution immediately (tout de suite) and without waiting for the exchange of Ratifications. 79 Martens, N. R. G^n. I. p. 156. RIGHT OF TREATY. 377 § 234. Treaties properly so called, the engagements Termina- of -which imply a state of Amity between the Con- Renewal. tractuig Parties, cease to operate if War supervenes, unless there are express stipulations to the contrary. It is usual on the signature of a Treaty of Peace for Nations to renew expressly their previous Treaties, if they intend that any of them should become once more operative. Great Britain in practice admits of no exception to the rule that aU Treaties, as such, are put an end to by a subsequent war between the Con- tracting Parties^". It was accordingly the practice of the European Powers before the French Revolution of 1789, on the conclusion of every war which super- vened upon the Treaty of Utrecht, to renew and confirm that Treaty, under which the distribution of Territory amongst the principal European States had been settled with the view of securing an Euro- pean Equilibrium. In the Treaty of Paris (30 March, 1856) there occurs a provision which is equivalent in its effect to the renewal of previous Treaties, under which it has been agreed that until the Treaties or Con- ventions which existed before the war between the Belligerent Powers shall have been renewed or re- placed by new arrangements, the commercial inter- course between the subjects of the various Powers shall be reciprocally maintained on the same footing as before the war, and their subjects in all other matters shall be respectively treated upon the foot- ing of the most favoured Nation ^\ In the Treaty of Zurich, concluded between France, Austria, and Sardinia ^^ (10 Nov. 1859), all the Treaties and Con- ^° Lord Bathurst's Letter of "' Ai-t. XXXI. Martens, N. R, Oct. 30, 1815. Twisa' Oregon G6n. XV. p. 780. Question, p. 188. **- Hiid- XVI. Part 11. p. 536. PART I. C c 378 EIGHT OF TREATY. ventions concluded between Austria and Sardinia, which were in force before April i, 1859 are con- firmed, so far as the Treaty itself does not derogate from them, but the Two Powers undertake to submit in the course of a year those Treaties and Conven- tions to a General Revision, in order to introduce, by common accord, the modifications which may be thought conformable to the interests of both coun- tries. There is, however, no corresponding provision either in this Treaty, or in the separate Treaty of Peace of the same date and place concluded between France and Austria, whereby the Treaties and Con- ventions between those Two Powers, if any such were in force before April ist, 1859^, ^^^ confirmed. ^^3 Recueil des Traites et Con- of Commerce and Navigation, of ventions conclus par I'Autriche Extra-Tradition, and of Postal avec les Puissances Etrangeres, Service, concluded between depuis 1763 jusqu'5, nos jours, France and Austria, determin- par Leopold Neumann, Leipzig, able every Five Tears at tbe 1855-59. I'^iis collection of pleasure of either Pai'ty. Treaties contains special Treaties V ■ ■f>-~ . 'V '* ,/■'■■. ^-' ■'^'^'.':MX.W'-'-'k :