Digitized by the Internet Archive in 2017 with funding from Princeton Theological Seminary Library https://archive.org/details/introductiontostOOwool_0 INTRODUCTION TO THE STUDY OF [NTERNATIONAL LAW. DESIGNED AS AN AID IN TEACHING, AND IN HISTORICAL STUDIES. BY z THEODORE D.'WOOLSEY. FIFTH EDITION REVISED AND ENLARGED. NEW YORK: CHARLES SCRIBNER’S SONS, 1888. Entered according to Act of Congress, in the year 1871, by CHARLES SCRIBNER & CO., In the Office of the Librarian of Congress at iVashington. Entered according to Act of Congress, in the year 1871, by SCRIBNER, ARMSTRONG & CO., In the Office of the Librarian of Congress at Washington. CoPTaiGHT, 1878, Br CHARLES SCRIBNER’S SONS. RIVERSIDE, CAMBRIDGE : ELECTROTTPED AND PRINTED BY H. 0. BODGHTON AND COMPANY. To THE MEMBEES OE THE INSTITUT DE EEOIT INTEEN ATIONAL, THIS FIFTH EDITION OF HIS INTRODUCTION TO THAT STUDY IS BY THEIR COLLEAGUE, THE AUTHOR. PREFACE TO THE FOURTH EDITION. The first edition of this work appeared in 1860, and the second, with much new matter and some changes of order, in 1864. A third in 1871, besides other additions, was enlarged by an important supplement to the second Appendix, bringing the list of treaties down as nearly as possible to the time of publication, and by a third Appendix containing notes on top- ics either briefly spoken of in the body of the work or newly brought into prominence during the war of the rebellion. The fourth edition now follows, in which quite a number of corrections, more or less important, are introduced into the main text ; an addition is made to the list of writem on inter- national law, and of collectors of diplomatic documents; the treaties are brought down to the present time ; and the third Appendix is closed by a note discussing the case of the Virginim. In regard to corrections, the reader is referred to §§ 55, 58, 122, 152, and 163 as containing the principal ones ; and he is requested also to consult the notes in the third Appendix in connection with the text to which they relate. It would have suited both writer and reader better to have had these notes inserted in the text, but stereotype plates put books into a strait-jacket Avhich it is hard to throw off. The title-page describes this Avork so aptly that a few words only need to be used in regard to its plan and object. The author had been engaged for a number of years in teach- ing international law and in giving lectures on history. The forAvard movement of this law over the world, the possibility VI PREFACE TO THE FOURTH EDITION. of a universal law of nations, spreading itself like the univer- sal Gospel over mankind, was the thought of greatest interest attending on the study. Naturally the historical treatment suggested itself, so that, while positive law took the first place, with justice going by its side, to serve as standard and monitor, the history of the science, of its advances, its fixed points, its uncertainties, was never left out of sight. The list of politi- cal treaties in the second Appendix, which a student in this country could not conveniently find elsewhere, will, it is hoped, throw light on the body of the work, and make some of the historical references more intelligible. The method pursued, of itself, points out the class of readers to Avhom the work is addressed. It is not intended principally for lawyers, but for young men of liberal culture, in prepara- tion for any profession or employment, who need the enlai’g- ing influences of a study like this ; Avho, in a republic like ours, are in a degree responsible for the measui’es of the govern- ment, and therefore ought to know what is acknoAvledged jus- tice between state and state. In concluding this preface the author may be permitted to say that he is conscious of no bias, national or other, in his exhibition of the science. The United States, on the Avhole, have had an honorable diplomatic history, partly, perhaps, if not mainly, OAAung to their being removed from the close inter- course and mutual jealousies of the nations of the Old World. Yet Ave liaA’e done Avrong, and in this Avork there has been no hesitation to condemn such wrong where it seemed to exist. And such ought ever to be the practice of a good citizen. New Haven, June 1, 1874. PREFACE TO THE FIFTH EDITION. In this edition, which is doubtless the last that the author will live to superintend, the whole work has been carefully re- vised ; much neAV matter has been added ; the sections relating to private international law, in the strict sense of the term, have been suppressed ; and the notes and discussions in the third Ap}>endix of the third and fourth editions have been in- serted in the text, either as parts of it or as annotations. For certain notes in which the letters T. S. appear, I am indebted to a friend, wlio has used the book in his instructions, and has kindly placed them at my disposal. New Haven, November^ 1S78. CONTENTS. INTRODUCTORY CHAPTER. DEFINITION, GKOWTH, JURAL AND MORAL GROUNDS, SOURCES OF INTERNA- ' TIONAL LAW. § 1, 2. A law of action, for states as for individuals, founded iu justice. § 3, 4. International law, what in a wider sense ? § 5. Actual international law, what? §6. Its genesis and voluntary nature. It is of later growth than state law. § 7. AVhy it arose in Christian states. § 8. Quite imperfect elsewhere. Illustrations of this from Greece and Rome. Not true that these nations had no international law. Its slow growth in mediaeval Europe. § 9. Names given to this science. Not the same as jus gentium. § 10. Differs from /us nnturale. § 11. Definition of Jus naturale by Grotius. § 12. Puffeudorf confonuds /us naturale and international law. § 13. A reference to the standard of justice necessary in international law. § 14. It cannot be rc.solved into contract-obligation. § 15. Must be looked at both as a positive law and iu its relations to jus and morals Its jural grounds. § IG. Its moral grounds. § 17. Particular rights and obligations of nations. §18. Observations on certain rights. (1.) The right of reputation. § 19. (2.) The right of redress. § 20j. (3.) Is there a right of punishing other states? § 205. Obligation of states to aid justice outside of their own bounds. §21. (4.) Is there a right of conquest? § 22. Moral relations, or duties and moral claims of states. §23. Observations ( n certain duties. (1.) Humanity. § 24. (2.) Comity. § 25. (3.) Intercour.'C. § 26, 27. Vattel’s, Wheaton’s, and other divisions of international law. § 28. Custom and free assent alike sources of international law. Thus moral claims become rights. X CONTENTS. § 29. International law adopted by municipal. § 30. Aids for ascertaining what international law is. §31. Stages in the develo])ment of international law. § 32. hlinor di.Terences in the views of different nations concerning it. § 33. Uncertainty and want of authority in international law. § 34. Importance of the history of international law. § 35. Method pursued in this work. PART I. THU ESSENTI.4L POWERS OF STATES AND THEIR RIGHTS AND OBLI- GATIONS, ESPECIALLY IN A STATE OF PEACE. CHAPTER I. RIGHTS OF STATES AS INDEPENDENT SOVEREIGNTIES. RULE OF NON-INTER- FERENCE AND ITS EXCEPTIONS. § 36. A state, what ? Pirates no state. § 37. Essential attributes of a state. Sovereignty, independence, equality, all included in sovereignty. May he parted with by confederated and by jirotected states. § 38. Obligations not affected by change of government. § 39. All forms of government legitimate in the view of international law. § 40. It knows only governments de facto. § 41. Same subject continued. § 42. As.sistance to provinces in revolt unlawful, but aid to another state against rebellion lawful. § 43. Non-interference the rule, but with e.Nceplions. Interference when jus- tified. § 44. Interference to jireserve the balance of power. § 45. Historical illustrations of such interference. § 46. Interference to prevent revolutions. § 47. Instances of such interference in the French revolution. The Holy Al- liance. Congress of Troppau-Laybach. Congress of Verona. § 48. The Monroe doctrine. § 49. Results of an attemjjt to establish a law of interference in the internal affairs of states. § 50. Interference in the Belgic revolution of 1830. § 51. Interference on the score of religion and humanity. § 52. Equality of states. Their rank. Existing rules of rank. These dis- tinctions fading out. CONTENTS. XI CHAPTER 11. TERRITORIAL RIGHTS OF STATES AND RIGHTS OP PROPERTT. STRICT EIGHT RENOUNCED IN THE USE OF NAVIGABLE WATERS. § 53. Property of states what, in international law 1 § 54. Consent of inhabitants of transferred territoiy sometimes asked. § 55. Modes of acquiring territory. § 56. What is included in territory. § 57. National character of the coast-sea. § 58. Are vessels on the sea territory 1 § 59. Freedom of the high seas and of fishery there. Fishery question be- tween Great Britain and the United States, until its settlement by the treaty of 1854. § 60. Claim of exclusive control over certain waters. (1.) Bays. (2.) Gulfs. §61. (3.) Straits and inland seas. The Danish straits. The Black Sea and its entrance. § 62. (4.) Rights over river navigation. Rule of Congress of Vienna. The Rhine. The Scheldt. The Danube by the treaty of Paris. The Mississippi. The St. Lawrence. The La Plata system of rivers. The Amazon. Other streams. CHAPTER III. RIGHTS OF INTERCOURSE. RELATIONS OF FOREIGNERS WITHIN A TERRITORY OF THE STATE. § 63. Intercourse of states, how far a right. What a state may not do re- specting intercourse. § 64. What a state may do. § 65. Individual aliens entitled to protection. Right of asylum, of innocent passage, of emigration. § 66. Relations of aliens to the laws, and their condition. § 67. Progress of comity and humanity towards aliens illustrated. Lh'oit d’aubaine. § 68. Exterritoriality, its limits as to sovereigns, ships of war, armies in transit, vessels in French harbors. Treatment of vessels driven into foreign waters out of their course. § 69. Exemptions to foreigners in certain Eastern countries. § 70. Aliens parting with the character of aliens. Naturalization. Rules of several nations as it respects naturalization. § 71. Domicil, what ? § 72 Conflict of laws as to a pariicular person. § 73. Private international law, what 1 Its growth. Its leading rules show tendency of nations to similar principles of law. § 74. Jural capacity. §75. Effects of foreign judgments. Xll CONTENTS. § 76. Crimes committed in a foreign country. § 77. Criminals escaping into a foreign country. Extradition. § 78. Extradition continued. § 79. Political crimes. § 80. Appendix. Case of Martin Koszta. CHAPTER IV. THE FORMS AND AGENTS OF INTERNATIONAL INTERCOURSE. Section I. — The Forms of Intercourse, or International Courtesy. § 81. General comity between nations. § 82. Respect for the reputation of another state. The Hulsemann affair. § 83. Treatment of foreign sovereigns, etc. Ceremonial of courts. Diplo matic correspondence of states. § 84. Ceremonial of the sea. Forms of politeness there. § 85. Disputes in Cent. XVII., concerning ceremonies at sea. Section II. — The Ayents in the Intercourse of Nations; or Ambassadors and Consuls. § 86. Persons appointed to manage the intercourse between nations. § 87. Origin of the privilege of ambassadors. § 88. Temporary and resident ambassadors. § 89. Is there any obligation to receive ambassadors 7 § 90. Right of sending ambassadors. § 91. Privileges of ambassadors. 1. Their inviolability. 2. Their exterritoriality, as (1.) Immunity from criminal. (2.) From civil jurisdiction. § 92. Immunity of their hotel and goods — without right of asylum for crim- inals. § 93. Freedom from imposts. § 94. Freedom of private worship. § 95. Privileges of ambassador’s family and train. His power over his suite. § 96. Limits of his immunity, — ambassador engaging in trade — committing great crimes. § 97. Relations of an ambassador to a third power. §98. Rank of ambassadors, — ceremonial, — termination of their mission. § 99. Consuls. Origin of the con.sular office. Consuls of the Middle Ages. § 100. Functions of consuls. Their jurisdiction out of Christendom. Their privileges and status. Their privileges in non-Christian countries Who can serve as consuls. CONTENTS. xiii CHAPTER V. OF THE RIGHT OF CONTRACT, OR OF TREATIES BETIVEEN STATES. § 101. Of contract in general, especially between slates. With whom can states make contracts 1 §102. What treaties are lawful ? ' § 103. Treaties made by a limited sovereign § 104. Treatic.s procured by fraud, falsehood, or force, not binding. § 105. Treaties to do an unlawful thing not binding. § 106. Kinds of treaties. § 107. Treaties of alliance. § 108. Treaties of confederation. §109. Treaties of guaranty. Guaranti(sof treaties. Origin of guaranties to treaties. § 110. Other modes of confirming the faith of treaties. Hostages. Pledges. §111. When do treaties begin to be binding? §112. Violation of treaties. § 113. Interpretation of treaties. Rejmguant clauses and conflicting treaties. PART II. INTERNATIONAL LAIV AND USAGE IN A STATE OF WAR. CHAPTER I. OF A nation’s RIGHT OF SELF-DEFENSE AND REDRESS OF INJURIES OR OF ■WAR, CAPTURE, AND TREATIES OF PEACE. Section I. — Of ]Vur. § 114. Of w'ar in general. § 1 15. War and just Avar, Avhat ? Who is to judge of its justice ? Are nations bound to resort to arbitration ? Ought an ally to judge ? § 116. Rightfulness of Avar. For what may Avar be undertaken ? § 117. Defensive and offensh'e war. § 118. Measures for redress falling short of AAar. 1. Embargo. Hostile em- bargo. 2. Retorsion. 3. Reprisals. Greek and Roman, mediiEA'al and modern usage as to reprisals. § 119. Pacific blockade. § 120. Commencement of war. Declaration. Greek and Roman practice. MediiEval practice. Modern. Reasons for the modern usage. § 121 Declaration of Avar continued. § 122. What notice of a state of war ought to he given? XIV CONTENTS. § 12.3. Effects of war. Non-intercourse with the eiicnit'. License to trade. § 124. Enemy’s property within a belligerent country. § 1 25. Have all in each hostile state a right to wage war 1 § 126. Treatment of enemy’s property on laud and sea compared. § 127. Forces employed in war, especially on the sea. Privateers. § 128. Evils of ])rivatecring. Testimony to these evils. Endeavors to stop it by treaty. Declaration of Paris, i85G. Attitude of the United States. § 129. Kestriciions on privateering to prevent its evils. SiccTio.v II, — Iaiws avd Usages of War, especialhj on Land. § 130. Laws and usages of war somewhat vague, yet improving. Causes of this amelioration. § 131. Fundamental rules of war. § 132. Petaliation. § 133. Special rules. (1.) As to weapons and ways of injuring an enemy’s per- son. (2.) Allowable weapons in war. (3.) Breach of faith. Solici- tations to crime. § 134. (4.) Treatment of captured persons, especially of soldiers. (5 ) Treat- ment of irregular troops. § 135. (6.) Of non-combatants and their property. Usages of the Romans, of the Middle Ages, etc., of the Thirty Years' War, of the time of Louis XIV., of Frederick the Great, of the English in the American war, of Napoleon § 136. Summing up. § 137. (7.) Of public property. § 138. (S.) Sieges and storms of forts and towns. § 139. Laws of war on the sea. § 140. Commercia belli. § 141. Spies. § 142. Attempts to ameliorate the practice of war on land. The Brussels Con- ference. Section III. — Of Civil irar.s. Wars with Savages, Piracg, and the Slave-trade. § 143. Civil wars. Wars with savages. § 144. Pirates and their treatment. § 145. Arc crews of rebels’ vessels pirates'? § 146. Is the slave-trade piracy ? Section IV. — Of Capture and Recapture, Occupation and Recovery of Tetritory § 147 Capture in general, especially from enemies. § 148. Property in prizes, how and when begun ? § 149. Complete title given by a court. § 150. Ransom of captured vessels. Hostages to secure ransom. §151. Recajiture. Rights of the original owner. Jus posiliminii. §152. Rewards for capture and recapture. Salvage. Its amount. § 153. Effects of temporary conquests. CONTENTS. XV Section V. — Of the Suspension and Close of War, especiall// of Truce and Peace. § 154. Intercourse in war, (1.) For the purposes of war. § 15.5. (2.) Licenses and safe conducts. § 156. Truce or armistice. § 157. Time wlicu a truce licgins. End of a truce. § 158. Peace, what? Of treaties of peace in general Language used in treaties. § 159. Eestrictions on the power to make peace. § 1 60. Effect of treaties of peace. § 161. Continued. § 162. Time when a treaty begins to be binding. CHAPTER II. OF THE RELATIONS BETWEEN nELLIGERENTS AND NEUTHALS. Section I. — Of the Obligations and Rights of N&Ural States. §163. Doctrine of neutrality of modern growth. Neutrals, who ? Gradations of neutrality. Permanent neutrality. Armed neutrality. § 164. Obligation of neutrals to be Impartial. § 165. To stand aloof from both parties. § 166. To be humane to both. § 167. The neutral may admit into hi.s jiorts war vessels of both belligerents. § 168. Treaty obligations to do this. § 169. Wliat neutrals may not do. § 170. Case of the Alabama. § 171. Cases doubtful or disputed. Passage of troops. § 172. The neutral furnishing troops. § 173. What may a neutral’s subjects do ? § 174. Rights of neutrals. Case of the Caroline. § 175. Continues § 174. § 176. iMiinieipal law.s enforcing neutrality. § 177. Rritish foreign enlistment act of 1870. § 178. Case of the British ambassador in the Crimean war. § 179. Relation of neutrals to the parties in an internal war. § 180. Recognition of belligerency. § 181. Right of stopping trade of neutrals with revolted territories. Section II. — Of the Rights and Liabilities of Neutral Commerce. § 182. Importance of questions touching rights of neutral trade. § 183. Who are neutrals, and what is neutral property? § 184. General principles as to liability of goods to capture. § 185. Nationality of goods and vessels, as affecting their liability to capture. § 186. Treatment of vessels conveying hostile goods. S 187. Justice of the rules respecting neutral trade considered. XVI CONTENTS. § 188. Former practice in regard lo neutral trade. § 189. Historical illustrations. § 190. Declaration attached to the Peace of Paris in 1856. § 191. Opinions of publicists. § 192. Neutral property in armed enemies’ vessels. § 19.3. Contraband of war. § 194. What goods arc contraband in the usage of nations. § 195. Pesults as to deciding what articles are contraband. Occasional con- traband. § 196. Is it just and sanctioned by usage. 0|)inions in respect to it. § 197. Preemption. English ])ractice in c.ases of |ireemption. § 198. Penalty for contraband at sea. Tieaty modifying the penalty. § 199. Neutrals carrying the enemy’s despatches. Case of the Trent. § 200. Trade closed in peace but open in war. § 201. The same subject continued. § 202. Blockade. What places can be blockaded 1 VVby is a breach of block- ade unlawful ? Validity of a blockade. Paper or cabinet blockade unlawful. § 203. Evidence of a blockade What is due notice ? What is a discontinu- ance of a blockade 1 § 204. French and English practice as to notification. § 205. Penalty for breach of blockade. Duration of liability to penalty. § 206. Attempts to stretch the rules of blockades. Berlin decree. Orders in Council. Milan decree. British Orders in Council of 1809. § 207. Continuous voyages. § 208. The right of search. Its narrow limits. Duty of submitting to it. Treaties often regulate tbe right. § 209. Is there a right of convoy 1 Historical illustrations'. §210. Its justice considered. §211. Neutrals under belligerent convoy. § 212. Search during peace lo c.xecute revenue laws. § 213. Search on suspicion of piracy. § 214. Search of vessels on the high sea suspected of hostile designs. Case of the Virginius. § 215. Search of foreign vessels suspected of being slaver.s, unauthorized. § 216. But conceded by treaties between most of the European states. Ex- amples of such treaties. §217. Obligations of the United States in regard to the slave-trade. Besolu- tions of Congress, February 28, 1823. Negotiations in England, and Convention of 1824, amended by the Senate of the United States, then rejected by England. § 218. Treaty of Washington in 1842. Practice under the treaty. §219. What docs the right of search mean 1 Doctrine held by the United States. New discussion concerning the right in 1858, 1859. New ar- rangements with Great Britain in 1862. § 220. Nationality of vessels a legitimate matter for inquiry in peace. § 221. Right of search for her seamen, claimed by Great Britain. CONTENTS. XVll CONCLUSION. DEFECTS, SANCTIONS, PEOGEESS, AND PEOSPECTS OF INTEENATIONAL DAW. § 222. Defects of international law. Its uncertainty. § 223. Its narrow limits. § 224. Peaceful ways of preventing or ending strife between nations. § 223. Plans for standing public arbitration. § 226. Projects for perpetual peace, as those of Henry IV., St. Pierre, Kant, Benthain. Ladd’s essay. Petition of a peaee society to the House of Eepresentatives in Congress, and its answer. § 227. Comproniissory arbitration. § 228. Sanctions of international law. § 229. Its actual progress. § 230. Its prospects for the future. § 231. Importance of the study of this science. APPENDIX I. Selections of works relating to international law. APPENDIX ir. List of the principal treaties '^'pectaMv of ocliti.'al onas, since the Keformation. b INTERNATIONAL LAW. INTRODUCTORY CHAPTER. DEFINITION, GROWTH, JURAL AND MORAL GROUNDS, SOURCES OF INTERNATIONAL LAW. § 1- In order to protect the individual members of human society from one another, and to make just society possible, the Crea- tor of man has implanted in his nature certain conceptions which we call rights, to which in every case obligations cor- respond. These are the foundation of the system of justice, and the ultimate standard, with which laws are compared, to ascertain whether they are just or unjust. They involve, amid all the inequalities of condition, a substantial equality of the members of society before the tribunal of law and justice, be- cause the physical, intellectual, and moral natures of all imply the same capacity and destination, and because to the capacity and destination of man his rights or powers of free action must correspond. On this basis within the state, and often without any direct cooperation of its members, a system of law grows up, which, while it may be imperfect, approaches, with the progress of the society in knowledge and moral cultivation, to the standard of perfect justice. And even the moral progress of society, the ability of its members to acknowledge their reciprocal claims and discharge their duties to each other, — to fulfill their part in that moral sphere Avhich lies in great measure quite beyond the reach of positive law, — this also is dependent to a great degree upon their correct estimate of rights and obligations. 1 2 INTKODUCTORY CHAPTER. § 3 § 2- Nations or organized communities of men differ from the in- dividual men of a state, in that they are self-governed, that no law is imposed on them by any external human power, while yet they retain the moral accountable nature, which must govern the members of a single society. They cannot have intercourse with one another without feeling that each party has rights and obligations. They have, as states, a common nature and destination, whence an equality of rights arises. And hence proceeds the possibility of a law between nations which is just, as expressing reciprocal rights and obligations, or just, as expressing a free waiver of the rights which are by all acknowledged; and which may also embody by mutual agreement rules, defining their more obvious claims and du- ties, or aiming to secure their common convenience and wel- fare. (Comp. § 27.) This law of intercourse between nations has been united with political law, or the doctrine concerning the constitution of the state and the relations of the government to the people, under the head of public law, as opposed to private^ or to the system of laws within the state, by Avhich the relations of its individual members are defined and protected.^ And yet there is a branch of this law which has both a private and a public character, —-private as relating to persons, and public as agreed upon betAveen nations. This law, or system of relations be- tween states, is now extensively called international laAV. §3. International laAv, in a wide and abstract sense, would Interna- embrace those rules of intercourse between nations in°thiwidest wliich are deduced from their rights and moral sense. claiiiis ; or, in other Avords, it is the expi’ession of the jural and moral relations of states to one another. ' Coni]). Kliiber, § 2, .duel for the next remark Pltird’s Lmo of Freedom and Bondaeje, § 25. The Germans excel ns in the neatness of their divisions of jural science, e. g., offentliches Rcclit is divided into Staatsrecht and Vdlkerrccht. §5. INTERNATIONAL LAW. 3 According to this definition, if we could once find out what are the rights and obligations, the moral claims and duties of nations as such, by mere deduction the principles of this science would be settled. But such an abstract form of the science, commanding general assent, neither has appeared nor is likely to appear. The advantage of separating international law in its theoretical form from the positive existing Code depends, not on the possibility of constructing a perfect code according to a true theory, but on the fact that right vuews of justice may serve as a touchstone of actual usages and regulations ; for in all jural science it is most important to distinguish between the law as it is and as it ought to be. This same distinction is made by those ^ who discriminate between international law, — the positive, admitted law, — and international morality. But the latter term must be objectionable to those at least who make a distinction between morals and jus. The law of nations, however, both as it is and as it ought to be, does not confine itself within the jural sphere. § 4. In a more limited sense international law would be the system of positive rules by which the nations of the i„ternation- world regulate their intercourse with one another. ^ore"iiniUed But in strictness of truth this definition is too broad, for there is no such law recognized as yet through all nations. Neither have the more civilized states of the East agreed with those of Europe, nor the states of antiquity with those of mod- ern times, unless it be in a few provisions, which together would constitute an exceedingly meagre code. §5. Coming within narrower limits, we define international law to be the aggregate of the rules which Christian 1 IT . 1 . 1 . Actual po.«i- states acknowledge as obligatory in their relations tiveintcma- to each other, and to each other’s subjects. Tlie 1 Comp, nn article attributed to Mr. Senior in Edinburgh Beview, No. 1.56, for April, 184.3, on Wheaton’s nistonj of the Law of Nations, in which the differences between morality as predicated of nations and of individuals are set forth. 4 INTRODUCTORY CHAPTER. §5- dom, but not obseryed towards gayagcs. rules also which they unite to impose on their subjects, re- spectively, for the treatment of one anothe]’, ai’e included here, as being; in the end rules of action for the states themselves. Here notice, — 1. That as Christian states are now controllers of opinion extending aiuong 111611, their views of law have begun to spread cSeu- beyond the bounds of Christendom, as into Turkey, China, and Japan. 2. The definition cannot justly be widened to include the liiw which governs Christian states in their inter- course with savage or half-civilized tribes ; or even with nations on a higher level, but lying outside of their forms of civilization. In general, towards such nations, they have acted on the principle that there is no common bond of obligation between them and the other parties, observing only so much of international law as suited their policy or sense of right at the time. Especially towards savage tribes they have often acted with flagrant selfishness, as if they feared no retri- bution from a weaker party, or were beyond the reach of pub- lic opinion. (Comp. § 143 and § 223.) 3. The rules of action agreed upon by two or more Christian states, but not by all, or the most of them, form no part of international law ; although they often illustrate it, and often pave the Avay for the admission of new modifications of it. 4. Nations, it is conceded by all, have obligations towards foreigners who are not constituent parts of any nation, or, at least, of any nation by which the law of nations is acknowl- edged. The consideration of the rights or moral claims of such persons belongs to international law, not as the system of rules observed between nations, but as involving obligations which all nations, or all Christian nations, acknowledge. (§ 146.) § 6. The way in which positive international law becomes such shows that it must be progressive and somewhat uncertain. Right, as Heffter remarks,^ is either guaranteed^ under the 1 VOlkerreclit , § 2. §6. INTERNATIONAL LAW. 5 protection and force of a competent power (as we see it in the state), ovfree, that is, the individual power or person must protect and preserve it for himself. The law of nations is of this latter kind. First of all, the sin- Toiuntary . . nature. gle state sets up for itself its views of right against other states. If it gives up its isolation, it freely forms in inter- course with other states a common right or law, from which now it can no longer set itself free, without offering up, or at least endangering, its peaceful relations, and even its exist- ence. Thus a law of nations can grow up only by the consent of the parties to it. It is, therefore, more a product of human freedom than the municipal law of a particular state. Its aatural progress is to start from those provisions which are necessary in conducting political and commercial intercourse, while it leaves untouched, for a time, many usages which are contrary to humanity and morality ; until, with the advance of civilization, the sway of moral ideas becomes stronger. It grows into a system of tolerable justice and humanity after, perhaps long after, municipal legislation has worked ^ ^ itself clear of many faults and errors. For although growth than ^ stcito ItlW. both branches of law have the same foundation of justice, and although a state, like Rome, for example, with an advanced system of internal laws, ought to have its views of international obligations purified ; yet, as states have diverse interests and opinions, it takes time before a seeming interest can be given up, even after right is acknowledged to be on the other side ; and it takes time to bring the views of nations to a common standard.^ 1 A state in the lower grade of civilization, like a sav.n^e, hccomes conscious of its separate existence in the act of resistance, or of defending that existence. Such self-preservation on the part of the individual arouses, it may he, no better feeling than that of independence and self-reliance ; in the state it helps the memhers to feel their unity and dependence, and the priceless value of the state itself. Plence war is amoral teacher : opposition to external force is an aid to the highest civic virtues. But if this were all there could be no recognition of obligations towards foreigners, no community of nations, in short, no world. These conceptions grow up in man, from the necessity of recognizing rules of intercourse, and intercourse is itself a natural necessity from the physical ordinances of God. Self-protection 6 INTRODUCTORY CHAPTER. § 7. §7. The same causes which have enabled Christian states to Why this reach a higher point of civilization than any other, Christian have made them the first to elaborate a system of states. international law. These causes have been princi- pally : (^1) the high moral standard of the religion which they in common professed, — a religion which cultivates alike the sentiments of justice and of humanity ; (2) the inheritance which came to them of philosophy and legal science from the classical states of antiquity, and especially the system of Ro- man law ; and (3) a close historical connection since the times of the Roman empire, favoring the spread of common ideas. Thus the same religious and jural views, and a similar histor- ical development, give rise to a community of nations, where it is comparatively easy for common usages to grow up. No such common feeling, but quite the opposite, existed between them and their Mohammedan neighbors ; and hence the latter were long sliut out from the pale of their international law. § 8. In other parts and ages of the world laws have grown up, in groups of nations, for the regulation of their con- duct to each other. But these have all been partial, imperfect*,^'^ and Were never constructed into a science. The clas- Greeceand sic states of antiquity had, at the best, a very simple and imperfect body of such rules and usages. Am- bassadors and heralds had a sacred character ; truces and treaties were acknowledged to be obligatory ; war was usually begun with an open declaration, and, perhaps, with solemn formalities ; but when once begun, it was waged with little rule or check. The Greeks were favorably situated for the development of a Hellenic international law ; for, like the Christian states of modern times, they formed a Greece. and intercourse are thus the two sources of international law ; they make it necessary, and the conception in man of justice, of rights and obligations, must follow, because he has a moral nature. §8. INTERNATIONAL LAW. 7 circle of communities, standing at nearly the same level of civilization, and in religion, as well as in historical traditions, connected with one another. And, in fact, the rudiments of such a law appear in the course of their history. They gen- erally gave quarter, allowed the ransom of prisoners, respected trophies, and consented to truces for the burial of the dead. They acted on the principle of the balance of power against a dangerous and ambitious state belonging to their circle ; they had a usage bearing some resemblance to the modern consular system ; and they sometimes by treaties or perpetual leagues, as the Amphictyonic, secured the existence of the parties con- cerned, or even softened the severities of war.^ But towards barbarians they acted almost without rule, and among them- selves permitted the most flagrant acts of inhumanity. The Romans had less of international law than the Greeks, and were less scrupulous, if we except their obser- vance, in their earlier days, of the fecial rules, which accorded so well with the formality of their religious character. The reason of this appeal’s to be that, after they became mas- ters of Italy, many of the nations they encountered were of another type than their own, and for the most part ’in decay or half civilized, and not in any respect their equals. To- wards such enemies they could act as their convenience dic- tated. It has been said that the Greeks had no international law at all; and the same arguments would deny the ex- no reason istence of such a law among the Romans, in their ^hat they^ earliest times.^ There seems to be no suflicient l“ernruona'i ground for this opinion. Neither nation may have reached an accurate notion of an international law, but they 1 Tims the old Ainphict3 onic league contemplated an armed intervention for the security of any member threatened with utter ruin by another ; and no state belonging to the league was to be deprived in war of the use of its fountain water. iEschines, De Falsa Lef/atione, § 11.5 ; Bekk. ; p. 279, Taylor. 2 A controversy was carried on in regard to the Greeks between Wachsmuth and Hefftcr, the former affirming the existence of a law of nations among them, the latter denying it. Comp. Osenbriiggen, De Jure Belli et Pacts (Leipz., 1836), p. 4, seq. 8 INTEODUCTORY CHAPTER. § 8. had usages corresponding to those which nations under such a law now observe ; and if these usages were placed under the sanction of religion, to secure for tliem a more thorough ob- servance, that religious character no more takes them out of the category of laws regulating conduct towards other states, than the same religious sanction given to the duty of hospital- ity took this duty out of the list of moral precepts. All mo- rality and /ms are sanctioned by religions which have in them a moral element, and sometimes the forms of religion groAV on to them so as to give them a religious aspect. The fecial law in Rome’s earlier days must have been the common property of all the Latin cities, a living law under the protection of the higher powers, introduced to prevent by its formalities a state of irregular war. (Comp. § 120.) But in mediaeval Europe, also, the laAV of nations for a time Internation- scai'cely I'ose above the level ivhich it reached in Middle Gi’eece and Rome. Especially was this the case dur- Ages. period of dissolution and reconstruction, and so long afterwards as national existence was kept down by the spirit of feudalism. The principal causes which modified it were, together with this of feudalism, the spirit of chivalry, the influence of Christianity, and the eentralized government of the Christian church. Feudalism, by breaking up society into portions slightly united together, made the progress of better usages and the triumph of right over will an up hill woi’k ; it increased the tendency to private war and sanctioned the right of resistance to the central government ; and it in- volved the presence on the soil of a large mass of men ivho had almost no rights. But the spirit of chivaliy, by encour- aging high sentiments of honor and fidelity, gave a moral sanc- tion to the observance of treaties, and rendered fraud and unfair- advantages over a rival unworthy of the true knight ; it threw a lustre over the defense of the weak and unpi’otected; and it cultivated humane feelings towards each other among die rulers of society. The spirit of Chi-istianity, also, — which, indeed, ivas at wmrk in the origination of chivalry itself, — did much to facilitate intercourse among men of a common faith ; §8 INTEKNATIONAL LAW. 9 it stopped, as far as it could, private wars ; it opposed the bar- barity of selling Christians as slaves, and introduced a some- what milder treatment of captives taken in war ; and it lent its sanction to all moral obligations. But it was neither pure enough nor strong enough to introduce a mild treatment of intidels, nor did it prevent various kinds of inhumanity, in peace as well as war, between Christians. The government of the church by a monarch, who gradu- allv gained great political power, was the source of the most striking peculiarities of the public law of the mediseval period. The presence in Exirope of an ultimate interpreter in religious and moral questions doubtless did great good as well as harm. Every important question of politics had a bearing on religion, which could bring it up for examination and settlement before the Pope ; and the very vagueness of the theory of papal intei’- ference aided its success on favorable occasions. In a gloss to the canon law (c. 2, Can. xv., qu. 6), it is said of the dispen- sing power of the Roman See, that “ contra jus naturale Papa potest dispensare, dum tainen non contra Evangelium ; ” and the great Pope Innocent III. said : “ Nos secundum plenitudi- nem potestatis de jure possumus supra jus dispensare.” (C. 4, X., De Concessione Prtebendae.) This dispensing power ex- tended to oaths. The oath of fealty was the moral cement of society, the last cord which bound the vassal to the suzerain. But the Popes asserted the right of releasing vassals from their oaths of allegiance, on the plea that the suzerain, who was dis- obedient or hostile to the church, might be proceeded against even to excommunication, and an outlaw as to church rights ought not to rule over Christians. In the disputes of kings, the weaker party often appealed to the Pope, and thus gave him an opportunity to arbitrate or command. Treaties confirmed by word of honor and solemn oath were open to the papal re- vision. Word might he broken with heretics, as the enemies of Christ. In the noted case of Huss. who had received a safe conduct, the Council of Constance resolved that it was lawful for a competent ecclesiastical judge to proceed against and 10 INTKODUCTORY CHAPTER. §8. punish obstinate heretics, “ etiamsi de salvo condnctu confisi ad locum venerint judicii, alias non venturi.”^ The iieierhborhood of dreaded enemies of the Cliristian re- ligion — of encroaching Mohammedan powers — brought up the question whether compacts could be made with infidels. This could not be avoided, if the two religions should have any intercourse, as in Spain ; but tlie lawfulness of treaties, especially of alliances, with them was denied. Fulk, Arch- bishop of Rheims, told Charles the Simple that there was no difference between becoming the ally of pagans and abandon- ing God for the worship of idols. (Grotius II., xv., 11, § 3.) And this feeling, that, whilst leagues of peaceful intercourse could be entered into with infidels, alliances with them were forbidden by Christian law, long remained ; and was strength- ened, no doubt, by the apprehension that thus the scandal would arise of Christians leagued with unbelievers against fellow-Christians.2 Many cruelties handed down from barbarous times held their ground through the mediseval period. Thus strangers were capriciously treated, and had scarcely any rights. (Comp. § 67.) After this period was over. Cardinal Richelieu showed its influence by avowing the right of arresting all strangers who came into the kingdom without safe conducts ; and a number of examples occur in those times of illustrious stran- gers, like Coeur de Lion in 1192, who when thrown by some accident on Christian shores were kept in captivity until they were ransomed. Cruelties in war, of which we speak below in §§ 134, 135, although often prevented by the genius of Christianity, were still common enough. Captives were held for a ransom, or even sold. The serf felt the full severity of war.3 1 Gieseler, Kirchengesch.., il., part 4, 419. ^ Sir E. Coke condemns alliances with infidels in a passage of his 4th Institute cited by Ward, and his contemporary Grotius {uhi supra) does not like them. ® See Ward’s Historg, passim. §10. INTEENATIONAL LAW. 11 § 9- Our science was called first by Zoucb (professor at Oxford), in bis “ Jus Feciale,” 1650, jus inter gentes. Its com- mon English appellation formerly was, the latv of to^thu nations. Since Bentham led the way, it has been called international law. A distinction of no great value has been set up between these two terms, according to which the former relates to the historical character or origin of the law, and the latter to its jurisdiction or ajiplication.i They will be used by us as equivalents. The law of nations, jus inter gentes., is not to be confounded with the jus qentiiun of the Romans. This term de- • 1 ,, Not the noted the principles and usages of law common to all same as jus . -11 • gentium. nations, that is, practically, to all nations known to the Romans, as contrasted with what was peculiar to the/ws civile, the law of Rome itself. Gains says (“ Inst.,” i., § 1), “quod naturalis ratio inter omnes homines constituit, id apud omnes populos perseque custoditur, vocaturque jus gentium, quasi quo omnes gentes utuntur.” The common usages of na- tions may run through all the fields of law, and so will include some rules of the international code. But the two evidently cover different ground, and the civil law never distinctly con- templates a law of nations in the modern sense. § 10. It is important, again, not to confound international law with natural law, — or, as it has been variously called. Different jus naturale, lex naturalis, and lex natures. Jus nat- n™t^)i“eor urale is the product of natural reason, and ought, since men are alike in their sense of justice, to be everywhere substantially the same. According to Gains and most other Roman lawyers, it is not different from jus gentium, as already defined. But Ulpian and others make a distinction between the two, which has passed into tlie Institutes of Justinian, with- out, however, influencing Roman law. To them jus naturale 1 Eeddie, quoted by Hurd, Law of Freedom and Bondage, i., 46. 12 INTRODUCTORY CHAPTER, § 10. is that in which men and animals agree, — the law stamped on free animate beings. Savigny thus explains their views : ^ “ There was a time, we may conceive, when men acknowl- edged only those relations which are common to man and beast, when they followed natural affections and impulses in all freedom. This was the reign oijus naturale. To this suc- ceeded an age of founding states, when slavery, private prop- erty, and obligations were introduced, and introduced every- where alike. This was the jus gentium. At last jus was developed in each state in its own peculiar way by modifying old institutions, or setting up new ones.” § 11- Modern writers have retained the term in an altered signifi- cation. Grotius (I., 1, S 10) defines it to be “dic- Dcfinition of . . . , . .... jus naturale tatuiii I'cctae ratioiiis, indicans actiu alicui, ex ejus by Grotius. . • • , convenientia aut disconvenientia cum ipsa natura ra- tionali ac sociali, inesse moralem turpitudinem aut necessita- tem moralem,'-^ ac consequenter ab auctore naturm Deo aut vetari aut prgecipi.” Grotius thus uses the term to include morality and jus, as the foundation of jus voluntariu7n, that is, as the standard to which law civil or international ought to be conformed. But existing law may differ widely from it. § 12. Puffendorf’s work on the law of nature and nations differs, to his disadvantage, from that of Grotius, in making little ac- count of usage and voluntary According to Grotius, the 1 Si/stem des limit. Rom. Redds, i., 41.5. 2 That is, a morally binding: force. Ilartciistein, in his valuable essay on the work of Grotius [AhhandL der Lcipz. Gesellsdi., i., 504, 509), reduces the uses made by Grotius of the term jus natur.ale to these three heads ; ( 1 . ) To the general obli- gation to satisfy moral claims, especially the more definite claims of jns and equity. (2 ) To the claims or rights which grow out of the nature of man, and would be acknowledged in an incorrnjit society, were there no organized state. (3.) To certain effects and results of .acts of human will. Thus, Grotius would say, man’s will originated property, but when once property was introduced, jus naturale in- dicated that it is wrong for one to take what is another’s without his consent. INTERNATIONAL LAW. 13 § 13. law of nations is “jus illud, quod interpopulos pliires aut popu- loriim rectores intercedit, inoribus et pacto tacito introductuin.” Puffendorf, as Mr. Wildman says,^ “entirely denies ^ . Puffendorf the authority of fjeneral usaffe ; and liis doctrine, put- confounds tine: aside the mass of words with which he has incuin- and iutcma- ° ■ I • 1 1 1 £ 1 tional law. bered it, amounts to this: that the rules of abstract propriety, resting merely on unauthorized speculations, and applied to international transactions, constitute international law, and acquire no additional authority, when by the usage of nations they have been generally received and approved of. So that the law of nations, according to Puffendorf, ends, where according to Grotius it begins.” Thus Puffendorf commits the faults of failing to distinguish sufficiently between natural justice and the law of nations; of spinning the web of a system out of his own brain, as if he were the legislator for the world ; and of neglecting to inform us what the world actually holds to be the law by which na- tions regulate their intercourse. Probably he was led into this by not discriminating clearly between the/ws gentium of the Romans and the^ws inter gentes ot modern publicists. §13. An opposite course to this is to exhibit international law in its, i^ositive form, as it lies in the practice and under- standing of a certain group of nations, either without method in reference to any jural or moral standard, or with re- ai law. its dcficiducicSi course to moral considerations only now and then in disputed cases. This is a safe method, but narrow ; and almost takes away scientific character from the subject-matter to which it is applied. What would municipal law be worth, if it did not point back to eternal right, and if by tracing it to its source it might not be made purer and more righteous ? If international law were not made up of rules for which reasons eould be given, satisfactory to man’s intellectual and moral nature ; if it were not built on principles of right ; it would be even less of a science than is the code which governs the ac- tions of polite society. Institute!! of International Law ’ “JS 14 INTRODUCTORY CHAPTER. § 14. § 14. A very narrow foundation is laid for this science by those who would build it on the obligation to keep express ai law not 01’ tacit conti’acts. In every contract it may be asked into contract whether the parties have a right to act at all, and if obligation. whether they can lawfully enter into the specific relations which the contract contemplates. Can two nations agree lawfully to destroy the political life of a peaceful neigh- bor, and divide its territories between them ? We look beyond a contract for its moral grounds. It is true, indeed, that a law controlling independent sovereigns can only become such by their free consent ; it must, as we have seen, be voluntary. But this code of voluntary rules cannot for that reason be arbitrary, irrational, or inconsistent with justice. §15. There are, then, always two questions to be asked : the first, The two ^4id most important. What is the actual understand- Stemluon- practice of nations? otherwise we have a structure that floats in the air, subjective speculation, without authority ; and the second, On what rational and moral grounds can this practice be explained and defended ? other- wise it is divorced from truth and right, mere fact only being left behind. But what are the rational and moral grounds of interna- jurai tional law ? As we have seen, they are the same in ^temation- general with those on which the rights and obliga- aiiaw. tions of individuals in the state, and of the single state towards the individuals of which it consists, repose. If we de- fine natural jus to be the science which from the nature and destination of man determines his external relations in society, both the question. What ought to be the rights and obligations of the individual in the state? and the question. What those of a state among states ought to be ? fall within this branch of science. That there are such rights and obligations of states will hardly be doubted by those, who admit that these relar INTEENATIONAL LAW. 15 § 16. tions of natural justice exist in any case. There is the same reason why they should be applied in regulating the intercourse of states, as in regulating that of individuals. There is a nat- ural destination of states, and a divine purpose in their exist- ence, which make it necessary that they should have certain functions and powers of acting within a certain sphere, which external force may not invade. It would be strange if the state, that power which defines rights and makes them real, which creates moral persons or associations with rights and ob- ligations, should have no such relations of its own, — should be a physical and not a moral entity. In fact, to take the oppo- site ground would be to maintain that there is no right and wrong in the intercourse of states, and to leave their conduct to the sway of mere convenience. (§ 2.) § 16. But there are moral relations, also, which are not relations of justice, and which give rise to international morality. It may be, to say the least, that nations have duties and moral claims, as well as rights and obligations. In matter of fact, some of these are generally acknowledged by nations, and have entered into the law of their intercourse, as, for examiDle, the duty of comity and that of humanity. These relations were called by the older writers imperfect rights and obligations, not because the moral ground for them is incomplete, but because the right in particular cases cannot be ascertained, and therefore ought not to be enforced, nor the violation of right regarded as an injury. Several recent writers give to them the name of duties and moral claims, an example which we shall follow in this work.^ 1 Mr. Wildman observes, that “ the phrase ‘moral claim’ at once conveys the idea which Piiffendorf and Vattcl have employed countless pages to confuse.” (I., 4.) Dr. Whewell uses this term in his Elements of Moraliti/ and Polity. He also uses the terms yus andyura/, which were first employed by Dr. Lieber. 16 INTRODUCTORY CHAPTER. § 17. 17. Among the jural principles or foundations of international law, we name — 1. The obligation lying on the state to protect the indi- Particuiar "viduals wlio compose it,i not only from domestic, oM.'aHons ^11^ 11^®° froiii foreign aggression. This obligation of nations, emanates immediately from the prime function ana end of a state, and is limited by the rightfulness of the sub- ject's conduct in his intercourse with the stranger. 2. Those qualities or rights which are involved in the ex- istence of the state. These may be called rights of sovereignty simply, or may be ramified into rights of sovereignty, inde- pendence, and equality. The exercise of these rights and the right of self-protection may, together, be embraced under the head of rights of self-preservation. (§ 37.) 3. Those rights which the state has in common with indi- viduals or with artificial persons, as the right of property, that of contract, and that of reputation. 4. The right which arises when the free exercise of the state’s powers above mentioned is impeded, that is, the right of redress, near to which lie the questionable rights of punish- ment and of conquest. Inasmuch as rights and obligations are correlative, there is an oblioation lying on every state to respect the Oblig.xtions • i j- i . and rights rights ot cveiw otliei', to abstain from all iniurv and correlative. ° y . . ■* . wrong towards it, as ivell as towards its subjects. These obligations are expressed in international law. 1 The English language wants a term besides citizen and subject, more general than either, and without the idea contained in the latter, of being under the con- trol of an individual. In this work I use .subject, for want of a better word, to denote all who are under the law ; and sovereign, that in which the sovereign power resides, whether an individual or a n.ation. The Germans use Angehbrige des Staats, or Staatsangehbrige, of all persons belonging to an independent jural cominunit^v, whether they may be citizens or subjects. INTEENATIONAL LAW. 17 § 19. § 18- Most of the above enumerated powers of states are plain, but one or two need a little explanation. Observations 1. The rig-bt of reputation. This right, when viewed in relation to individuals, seems to consist of i. Right of , 1 • 1 1 K^putatiru, two parts, the one objective, — the right to a good what ; name, — the other subjective, — the right of exemption from insult and causeless w'ounding of the feelings. Corresponding to these rights are the obligations to respect a man’s reputa- tion, and to refrain from wounding his feelings by aspersions on his character. These rights are generally blended, but may exist apart ; for instance, a man may insult another, or make false charges against him, when no one else knows of it. These rights, but principally the objective one, form the ground of the prosecutions for slander and libel ; and a large part oi private feuds arise from their violation. The honor or reputation of a state is equally its right ; and the injury done by violations of this right will seem very great, when we con- sider the multitudes who suffer in their feelings from a na- tional insult, and the influence of the loss of a good name upon intercourse with other states, as well as upon that self- respect which is an important element in national character. Regard for national reputation, too, increases with refinement and with closeness of communication. The Fijis or the Hottentots care little how the world regards them, but the opinion of civilized nations is highly valued by all those states which are now foremost in human affairs. Without such a value set on reputation, fear of censure could not exist, which is one of the ultimate bulwarks of international law. § 19- 2. The right of redress exists in the case of individuals, although it would seem that a person cannot with 2. Right of justice be his own judge and redress himself. Hence the need of courts and arbitrations in society, which, by their impartiality, knowledge of law and evidence, and habits of 2 18 INTRODUCTOKY CHAPTER. § 19. judging, approach, as nearly as finite beings can, to the de- cisions of absolute truth. Societies or states must have not only the right of obtaining redress^ but also tliat of redressing themselves ; the former, as being just and necessai’y for the protection of all rights ; the latter, because they have no nat- ural superior, — because in fact they are vicars of God Avithin a certain sphere. It may be said that thus they become judges in their OAvn causes. This is true, although not in the same sense, nor Avith the same violation of justice, as Avhen private persons redress themselves ; for the proceedings of states are more deliberate, and for the most part the same body Avithin the state is not at once the injured and the re- dressing party. It may be said also that an impartial court selected from other nations Avould be more just, and ought to decide in international disputes. This might be desirable, but it does not appear that nations are for that reason bound to abstain from redressing Avrongs. The private person has a natural superior in the state to which he is bound to sub- mit ; but God has established no such natural superior over nations. Redress consists in compensation for injury inflicted, and for its consequences. The right therefore ceases when the injured party is placed in as good a situ- ation as before. Mingled up in the same concrete Avith the ^ j act of redress, there may be an act of self-protection with self- aeainst future iniurv. A nation may haAm shoAvn protection. i such a disposition to do wrong, that another may de- mand security as Avell as indemnity ; and this security may proceed, for anything that appears, even to the length of de- stroying the Avrong-doing state’s existence. Redress what? § 20 a. 3. Grotius held that a state has the right to punish injuries, a. Has a committed not only against itself and its subjects, state the , i ^ t • i right of but also against others over Avhom it has no guar- other states? diaiisliip. “ Sciendum quoque est,” he says (II., 20, § 40) “ reges et qui par regibus jus obtinent, jus habere § 20 b. INTERNATIONAL LAW. 19 pcEiias poscendi non tantum ob injurias in se aufc subditos suos commissas, sed et ob eas quse ipsos peculiaviter non tangunt, sed in quibusvis personis jus naturte aut gentium im- mauiter violant.” This right ho derives from a similar right of individuals in a state of nature ■which they gave up to so- ciety. He adds that it is more praiseworthy to punish in- juries done to others than to ourselves, inasmuch as we arc tlien less likely to be partial. Few, if any, we suppose, would now undertake to defend the explanation here given by Grotius of the state's right to punish ; and the extent which he gives to the right seems equally objectionable. There must be a certain sphere for each state, certain bounds within which its functions are in- tended to act, for otherwise the territorial divisions of the earth would have no meaning. In regard to the right of pun- ishing in any case outside of the bounds of the state there may be rational doubts. Admitting, as we are very ready to do, that this is one of the powers of the state over its subjects, we can by no means infer that the state may punish those who are not its subjects, but its equals. And yet, practically, it is impossible to separate that moral indignation which ex- presses itself in punishment from the spirit of self-redress for wrongs. As for a state’s having the vocation to go forth, beating down wickedness, like Hercules, all over the world, it is enough to say, tliat such a principle, if carried out, would destroy the independence of states, justify the nations in tak- ing sides in regard to all national acts, and lead to universal war. And yet extreme cases of outrage may be conceived of, where a burning desire to help the weak abroad, or to punish the oppressor, ought hardly to be disobeyed. § 20 h. The inquiry, whether a state has a right to punish beyond its own limits, leads us to the more general and prac- Relations of tically important inquiry, whether a state is bound to general jus- aid other states in the maintenance of general justice, that is, of what it considers to be justice. The prevalent view 20 INTRODUCTORY CHAPTER. § 20 0. seems to have been that, outside of its own territory, including its ships on the high seas, and beyond its own relations with other states, a state has nothing to do with the interests of justice in the Avorld. Thus laws of extradition and private international law are thought to originate merely in comity. (§§ 73, 78.) Thus, too, crimes committed by its own citizens abroad it is not bound to notice after their return home. Thus, again, contraband trade is held not to begin Avithin the neu- tral’s borders, and outside of them, as on the high seas, con- cerns the belligerent alone. (§ 193.) And again, A\dien a nation commits a gross crime against another, third parties are not generally held to be bound to interfere. This is the most received, and may be called the narrow and selfish view. On the other hand, the broad vieAv, that a state must aid in getting justice done evei'yAvhere, if its aid be invoked, and even Avithout that preliminary, Avould occasion more violence than could thus be prevented. Such a proceeding, too, Avould be unjust, as overruling the judgments of the laAvful authority. But there is a middle ground on Avhich the theory of inter- national obligation can be rationally placed. (1.) As already said in § 20 a, the interests of justice require that the state, like eA'ery moral person, shall have its special sphere of action, Avithin which it may not be invaded, except in extreme and outrageous cases, — Avhich cases are contemplated by the actual laAv of nations. (§§ 43, 51, IIG, end.^ (2.) The moral being, much more the state, — Avhich, as a member of a com- munity of nations, is interested in the prevalence of justice everyAvhere, and is the only ultimate asylum of it when attacked, — is bound to aid in maintaining justice even outside of its own sphere, if this aid can be so rendered as to violate no higher and more permanent rules of justice. (3.) In those cases Avliere another state either invokes or does not object to its aid, a state, if its OAvn judgment is clear on the right of the case, may lend its assistance. (4.) When this aid to foreign justice can be rendered within its own territory the obligation is clear, and thus the extradition of criminals, contrary to Avhat is usually taugb.t, and to the opinion expressed in the first §21. INTEPvNATIONAL LAW. 21 edition of tliis work, cannot witli propriety be refused in cer- tain cases. (§77.) (5.) Private international law must have its origin in justice and not in comity, so that nations, if they can only find out what the principles of justice here are, ought to adopt them. (C.) Some questions, as whether a state is bound to aid foreign custom-house laws by preventing smug- gling, and how far a neutral ought to prevent contraband trade of its subjects and from its ports, are beset with special dif- ficulties. Of the latter we shall speak hereafter. (§ 193, note.) Of tlie former, we may say that a tariff may be un- reasonable and deleterious to the interests of other states and thus unjust; it cannot be expected that aid can be given in such a case. But where a tariff is admitted to be reasonable, since it is a necessity and is rightfully imposed ; to break such laws by smuggling is immoral, and a nation ought, if not to restrain its people from so doing, at least not to encourage or to screen from penalties those who violate foi-eign law. In such cases the neglect of justice avenges itself by the lawless- ness of those who are trained up in the flagitious trade. ^ § 21. 4. Natural justice knows nothing of a right of conquest in the broad sense of that term, that is, of mere superior 4. is there . . T . 1 1 . . right of rorce, canying with it the license to appropriate ter- conquest? ritory, or to destroy national life. Yet, in fact, nations accept, if they do not justify, such a right of conquest. The reasons for this are, in genei’al, derived from the rule, that it is officious and impossible for nations to sit as judges over each other’s conduct, or in other words, from the independence of nations. (§§ 37, 115.) But more particularly (1.) in the exercise of the right of redress it may be necessary to strip a wrong-doer of a portion of his territory ; or in the exercise of the right of self-protection, and, possibly, of punishment, it may be lawful to deprive him of the means of doing evil. (2.) The spirit of conquest generally urges one of these pleas in its defense, over the validity of which, as we have said, nations may not ^ Compare K. v. Mold in a monograph in his StacUsr. Volkerr. u. Politik, vol. i. 22 INTRODUCTORY CHARTER. § 21. sit in judgment. (3.) Treaties genei’all}'^ perfect the title Avliicli possession or conquest begins. (4.) When a settled state of things follows a conquest, it is usually acquiesced in, because, as has been seen, if nations repaired each other’s wrongs, the way would be open for perpetual Avar. Thus international laAv acknoAvledges the fact of conquest after it has become a permanent fact in the Avorld’s history, and in some degree, the right also. Yet the mere fact of having occupied territory or subjugated its inhabitants, can be no sufficient ground in justice, even in a just Avar, for the exercise of the right of conquest. Redress and punishment ought not to exceed due limits, nor ought self- protection to demand an exorbitant amount of security. In accordance Avith this the spirit of conquest is regarded by the nations as the spirit of robbery, and as hostility to the human race. This is shoAvn by their combinations to resist it, as in the Avars against Louis XIV. and Napoleon ; by their protests against acquisitions regarded as unjust, and against alliances formed for the injury of Aveak states; by the pretexts Avith Avhich aggressors seek to shield themselves from the condemna- tion of the Avorld ; and by the occasional consent of victorious nations to give a price for territory acquired in Avar ; as Avhen the United States paid a sum of money to Mexico for lands ceded at the peace of 1848.^ A Tlie Abl)e de Mably, on this subject, uses tlic following langinige ; “ A pi iiice is doubtless in the right in conquering a province -which belongs to him, and of which the restitution is refused. He can, even, to punish his enemy for his in- justice and to recoinjiense himself for the expenses of war which he has been forced to make, extend his conquests beyond the country which he claims as his own. But arms, of themselves, give no title ; they suppose an anterior one, and it is to try this contested right that the war is waged. AVere it otherwise, a prince despoiled by his enemy would no longer have any right to the countries which have been taken from him, and hence it would be ridiculous for the victor to de- mand a cession from him in treaties of peace. AVe may add here a very simple argument : if conquests by their nature form a legitimate rigid of possession to the conqueror, it is indifferent whether the war be undertaken on just or unjust grounds.” — Droit Public, vol. i., part 2, 109, ed. of Amsterdam of 1777. §23. INTERNATIONAL LAW. § 22. Moral claims and duties, being to a great extent determined by the special circumstances of the case, cannot be so easily defined and enforced as rights and obligations ; and opinions in regard to them vary with the varying moral feelings of individuals, of countries, and of ages. Hence with the increase of culture, and the greater sway of pure religion, the influence of moral ideas over nations enlarges. No cause has had greater efficacy in producing changes in international law than this, of which the improvements in the laws of war, and in the treatment of individuals out of their own country, are good illustrations. The rules drawn fi’om this source are less capable of being reduced to a theory than those deducible from jural relations. § 23. One or two recognized branches of duty between nations deserve a brief notice. Particular duties 1. The duty of humanity, including hospitality. ^ numan- This duty spends itself chiefly in the treatment of *‘y- individuals, although suffering nations or parts of nations may also call for its exercise. The awakened sentiment of human- ity in modern times is manifested in a variety of ways, as by efforts to suppress the slave trade, by greater care for captives, by protection of the inhabitants of a country from invading armies, by the facility of removing into a new country, by the greater security of strangers. Formerly, the individual was treated as a part of the nation on whom its wrongs might be wreaked. Now this spirit of war against private individ- uals is passing away. In general any decided want of human- ity arouses the indignation even of third parties, excites re- monstrances, and may call for interposition. (Comp. §§ 21, 51.) But cruelty may also reach beyond the sphere of human- ity ; it may violate right, and justify self-protection and de- mand for redress. 24 INTRODUCTORY CHAPTER. §24. § 24. Comity is another duty of nations. To this source may be referred in part the privileges conceded to ambas- 2. Comity. , . ^ . . sadors, and the preference given in certain cases to foreign over domestic law by the courts of Christendom. Comity, as generally understood, is national politeness and kindness. But the term seems to embrace not only that kindness which emanates from friendly feeling, but also those tokens of respect which are due between nations on the ground of right. A much wider sense is given to the term comity by those who embrace in it all those praiseworthy acts of one nation towards another, which are not stricti juris^ that is, all that, the refusing or withholding of which, although dictated by malevolence, is not an injury, and so not a ground for Avar. But usages originating in comity may become rights by lapse of time. (Comp. Phillimore, I., 161, and §§ 26, 28, infra.) § 25. Some have contended that there is a positive obligation 3 Inter- iiatioiis to enter into relations at least of com- course. mei’ce, so that the refusal thus to act Avould be an injury, and possibly a cause of Avar. It might be said that differences of climate, soil, productions, and acquired skill, enable all parts of the Avorld to aid one another, and that this clearly points out a divine destination and intention that they shall so act. But the better opinion is, that, except in ex- treme cases, — as Avhen one nation cannot do Avithout the pro- ductions of another, or must cross its borders to get at the rest of the Avorld, — this is only a duty, an exercise of a spirit of good-Avill, to be judged of by each state according to the light Avhich it possesses. In all intercourse the tAvo parties concerned must settle the terms ; hoAV then can one force the other into a treaty of commerce, any more than one man force another into a contract. But althongh Avriters are believed to agree substantially in § 26. INTERNATIONAL LAW. 25 this, there is a disposition on the part of nations to act as if they had a right to require others to exchange products with them. This has been seen in the dealings of later years with certain Oriental and other states. But might not one Chris- tian state with greater reason force another to give up its pro- tective tariff ? It thus appears that intercourse, which is a preliminary to all international law, and the condition, without which rights and obligations would be mere abstract conceptions, is itself referable to the class of duties, and that the refusal to allow it is no injury. There is nothing more strange in this than in the voluntariness of all private contracts, as of the marriage union, which must be presupposed before any family rights can exist. All that rights serve for is, when intercourse is given, to make it jural. Thus Ave see again the voluntary quality of international law. § 26. Vattel divides the law of nations into the natural or neces- sary^ so called because nations are absolutely obliged vattei’s m- to observe it ; and the positive^ proceeding from the volition of nations. This latter, again, is subdi- vided into voluntary, conventional, and customary laAV, Avhich are respectiA^el)^ derived from presumed, expressed, and tacit consent. Of voluntary law Vattel says, that it embraces the rules drawn from the principle that nations, being equal and independent, are obliged to suffer each other to do many blamable things, presuming or acting as if they were right. Thus capture in war is valid, Avhether made by the aggressor or the injured. But there seems to be no reason for setting off this as a distinct branch, and it is by no means clearly de- fined. Such cases as Vattel contemplates are to be referred to the obligation under Avhich nations lie of not interfering with each other's sovereignty, and thus run back to the nec- essary law of nations. Dr. Wheaton, justly discarding this subordinate division of volmitary law, makes natural law one genus, and voluntary, 26 INTRODUCTORY CHAPTER. § 27. another, under which latter conventional and customary ai’6 included. The division of international law into primitive and secondary law, is altogether similar to this, primitive being the law of nature and secondary that of treaty and usage. But these divisions, although avoiding Vattel's error, are of no great value. For, (1.) A require- ment of natural law may be coufirmed by voluntaiwy as by a treaty ; to which, then, of the two does it belong ? (2.) Con- ventional law hitherto includes no treaties between all the Christian states of the world, and thus is rather to be taken as evidence of what international law is, than as a part of it. Nay, treaties are often made to except the parties from the operation of a real or supposed international rule. (3.) In reality all international law is voluntary, not in the sense that it derives its sole obligation from the will of the parties, but in the sense that all nations in a certain circle agree to abide by it. (4.) And again, all voluntary law is natural, being built on the foundation of the sacredness of agreements. § 27. Perhaps a division like the following may have something other diris- commeiid it, wliicli separates the rights and obli- lons. gations known to this science into, (1.) those which are deducible from natural /ms, which no action of a sover- eignty began or can terminate ; (2.) those deducible from the idea of a state ; (3.) those which are begun and can be ended by compact, express or tacit. Another division still which we have made already (§ 2), follows the division of the three grounds or reasons for international rules, namely, /us, morality, and convenience. The first class comprehends natu- ral rights and obligations, which can be defined and enforced. The second, duties and moral claims which cannot be easily defined, and need compact to establish them ; and the third, arrangements of a purely voluntary nature. A very consid- erable part of international law is included under the second and third of these heads ; a fact which serves to show the highly positive or voluntary nature of much of the science. INTERNATIONAL LAW. 27 I 28. Thus exterritoriality, private international law, the rules of respect, some, at least, of the regulations touching ambassa- dors, the laws of war to a great extent, are of this description. These parts of the science cannot be deduced from a theory, nor could they have arisen prior to a long experience. §28. Whether the free assent of nations take the form of ex- press agreement or of usage, it places them alike custom and under the obligation of contract. Customs Avithin aiTkesomces each country existed before statutes, and so observ- ances come in imperceptibly and control the conduct of a circle of nations. A nation Avhich grants privileges to an- other by tacit consent, and then revokes them Avitliout cause, may commit an injury just as if it had broken a treaty. For example, intercourse may become a right by becoming a fact, and to end it Avithout an express cause, Avould be a proof of a hostile mind. It is to be remarked, also, that not only obligations of nat- ural justice are recognized in this tacit AA^ay, but duties be- come obligations, and claims or conveniences, allowed, be- come rights, just as by formal contract. A nation may grant the privilege of transit to the troops of another by treaty ; it has noAV become a right. The same thing may come about by custom or tacit consent. It might seem as if nations could alter their conduct at pleasure, Avithin the spheres of moral claims and convenience. But if they have sanctioned a iisage by long permission Avithout protest, they have laid an obliga- tion on themselves, and cannot alter it. It may, hoAvever, be difficult to say when such obligations begin, for instance, when transit, silently suffered, becomes a kind of servitude on the soil. There is a difference, also, in usages. Mere forms of intercourse may have little binding force, but principles ad- mitted in common in a silent AA'ay, and giving birth to com- mon habits, as well as mutual privileges conceded without treaty, appeal to the moral sense of nations. 28 INTRODUCTORY CHAPTER. §29. § 29. As soon as a nation lias assumed the obligations of interna- interna- tioiial hiw, they become a portion of the law of the adoTtU'by to govern the decisions of courts, the CQiiduct municipal. I'ulers aiid that of the people. A nation is bound to protect this part of larv by statute and penalty as much as that part which controls the jural relations or in other ways affects the actions of individuals. Otherwise it is a dead letter ; there is a Avant of faith towards foreign powers, and there is danger of quarrel ending in war. All Christian states have, it is believed, in this way sanctioned international law, so far as it seemed to them necessary. It is, says Black- stone, “ adopted in its full extent by the laws of England ; and Avhenever any question arises Avhich is properly subject to its jurisdiction, it is held to be a part of the law of the land.” “ As being a part of the common law of England, the law of nations is adopted by our oavu law also, for it is well settled, that the common law of England, so far as it may be con- sistent with the Constitution of this country, and remains un- altered by statute, is an essential part of American jurispru- dence.” ^ Parts of it, moreover, have received an express sanction from the Constitution and Statutes of the United States. § 30. The helps for ascertaining what international law is, or lias Aids for been, may be derived principally from the following whiri’nter- documeuts : — natiouai law laws of various poi’ts 01' disti'icts, which had a commercial importance in mediseval Europe. 2. The treaties in Avhich a large number of important na- tions have had a part, as the treaty of Westphalia, the Con- gress of Vienna, and the recent treaty of Paris, in 1856. Other political treaties are evidences of an opinion entertained by the parties in regard to certain provisions of the law of na- tions ; and that, rvliether they sanction these provisions or ^ 1 Kent, Lect. 1. §31. INTERNATIONAL LAW. 29 suspend their operation. Much the same thing may be said of treaties of commerce, which often touch on mooted ques- tions of maritime law. A brief statement of the leading features of the principal political treaties since the Reforma- tion constitutes the second appendix to this volume. 3. Judicial decisions, Avhich often set forth in the clearest manner the state of" the law as it is understood by the ablest legal authorities of a particular country, and Avhich, although not always followed, command respect in other countries. The decisions of the English courts, especially of the Admiralty under Sir William Scott (Lord Stowell), although taking a view of neutral rights on the sea rvhich is noAV becoming ob- solete, are distinguished for their ability, and haA'e had a great influence on opinion in this country. Many decisions of the Supreme Court of the United States involve points of inter national law, — a court, before Avhich, originally, “ all cases touchmg ambassadors, other public ministers, and consuls,” and, ultimatel}", various questions affecting treaties and rela- tions Avith foreign countries can be brought. 4. State papers on controverted points, such as those writ- ten in our OAvn country by Jefferson, Hamilton, Webster, and Marcy. 5. Treatises on this branch of science, or on some title of it, some of which Avith reason, or by accident, have acquired a standing above others. A list of the most eminent text- writers may be found in the first appendix to this work. § 31. In tracing the progress of international law, that is of views or theories concerning it, Ave may notice several stages, more or less clearly defined, through Avhich it has passed. 1. Among the ancients Ave have a recognition of right and Avrong in the intercourse of states together Avith some rules regulating inter- course and some rules of humanity in war, — placed chiefly un- der the sanction of religion, — but no separation of this branch of law from the rest, as a distinct department. (§ 8.) This period continued until after the revival of learning. In the 30 INTRODUCTORY CHAPTER. § 31. Middle Ages the science was still undeveloped, but religious institutions and antipathies modified the practice of Christian states. (§ 8.) Dui-ing the revival of learning, a spirit arose in Italy, which made light of all obligations between states, and almost deified successful wickedness. Soon after this, we perceive that the forerunners of Grotius, as Suarez, Ayala, and above all, Albericus Gentilis, are aware that a system of international law ought to be evolved, and are working out particular titles of it. (Append. I.) 2. With Grotius a new era begins. (§ 11, Append. I., C.) His great aim was practical, not scientific, — it was to bring the practice of nations, especially in w^ar, into conformity with justice. He held firmly to a system of natural justice between states, without, however, very accurately defining it. To posi- tive law, also, originated by states, ho conceded an obligatory force, unless it contravened this justice of nature. In setting forth his views, ho adduces in rich abundance the opinions of the ancients, and illustrations from Greek and Roman history The nobleness of his aim, and his claim to respect as the father of the science, have given to the treatise “De Jure Belli et Pacis ” an enduring influence. 3. After Grotius there appear two tendencies. One is to disregard all that is positive and actual in the arrangements between nations, and to construct a system on the principles of natural law ; in which way a law for states, differing from ethics and natural justice, is in fact denied. This tendency is represented by Puffendorf. (§ 12.) The other tendency was a reaction against this writer, and satisfied itself with repre- senting the actual state of international law, as it exists by usage and treaty, without setting up or recognizing a standard of natural justice by its side. Bynkershoek and Moser (see Append. I., C.), with Martens and others in more recent times, are examples here. Many writers, however, treading in the steps of Grotius, regard natural justice as a source of right, with which the practice of states must be compared and brought into conformity, and which may not be neglected in a scientific system. §34. INTEKNATIONAL LAW. 31 § 32; There has been a general progress in the views of text- writers since the age of Grotius, and a substantial agreement between those of all nationalities at the same era. And yet minor differences are very observable. Some of the most striking of these are the differences between the English and the Continental doctrine, arising from the insular position of Great Britain, from her commercial interests, and her power on the sea. Thus we find her behind the Continent in re- specting the sanctity of ambassadors until into the eighteenth century. (§ 96.) Thus also while her practice in land wars has been humane, her sea-rules and the decisions of her courts have in several ways borne hardly upon neutrals. It is worthy of notice that our courts have followed English precedents, while our Government, as that of a nation generally neutral, has for the most part leaned in its doctrines and treaties to- wards Continental views. § 33. Hitherto, as may be gathered from what has just been said, there is something of that same uncertainty and want of au- thority to be discovered in international law, which attends on other political and jural sciences. This is due to causes al- ready noticed : (1) to the changes in the science growing out of changes in the intellectual and moral culture of successive generations ; and (2) to the fact that states, according to their temporaiy or their permanent interests, have set up or fol- lowed different rules of action. Whether anything can be done, by means of an interna- tional code, to bring more certainty and precision into the science will be considered in the sequel. (§ 222 and onward.) § 34. In every branch of knowledge, the history of the branch is an important auxiliary to its scientific treatment. From the changes and improvements in the law of nations, it is evi- 32 INTRODUCTORY CHAPTER. §34. dent that the history of this science — both the history of ^ opinion and of practice — is deserving of especial at- interna- tention. It is a leading chapter in the history of civil- its import- izatioii. It fumislies valuable hints for the future. Notwithstanding its dark passages, it is calculated to animate the friends of justice and humanity. It explains the present state of the science, and indicates the obstacles which liave retarded its advance. Hence the value of such works as Laurent’s “ Histoire du Droit des Gens,” which in three vol- umes embraces the East and the classical nations of antiq- ity. Ward’s “Enjjsrffy,” embra^ig the period from the time of the Greeks and Romans to the age of Grotius, and Whea- ton’s history, which in a sense continues Ward’s work down to the peace of Washington in 1842, is surpassed by that of few systematic treatises. Histories of treaties also are of great importance, as aids in understanding the treaties them- selves, which are a principal source of international law. It will be one of our primary aims in this woi’k, as far as our narrow limits permit, to append historical illustrations to the leading titles, in the hope of exhibiting the progressive character of the science, and of conferring a benefit on the student of history. It ought, however, to be I'emarked that historical precedents must be used with caution. History tells of crimes against Ihe law of nations, as well as of its construction and its observance, of old usages or principles given up and new ones adopted. There is no value in the mere historical facts, apart from the reasons or pretexts for them, and from their bearings on the spread of justice and the sense of human brotherhood in the world. § 35. A method which aims to be practically useful in interna- tional law, must take notice of the great importance sued in this which questions pertaining to a state of war have ■ in that science. In both peace and Avar the essential qualities of states — their sovereignty and the like — must be exercised ; but war suspends the operations of certain §35. INTERNATIONAL LAW. 33 rights, and calls into activity certain others. Then again, in peace every state sustains a similar relation towards every other ; but in war a belligerent state has one relation to its enemy, and -another to all states besides ; or, in other words, the rights and obligations of non-belligerents or neutrals now begin to exist, or to become practically important. We have, then, the general faculties or powers of states, their relations of peace, and their relations in or owing to war. In the method here pursued, these general faculties or essential pow- ers of states, instead of forming a distinct division by them- selves, constitute together with the rights and moral claims, the obligations and duties, which have their operation espe- cially in a state of peace, the first part of the science. Then follo’u’s the second part, having to do with a state of war. Our First Part consists of the following chapters; the first treating of the rights and obligations of states as independeait sovereignties ; the second, of the right of property, and rights over territory belonging to states ; the third, of the rights and duties of intercourse between nations, with the relations of foreigners within the territory to the state ; the fourth, of the forms and agents of intercourse between the states them- selves ; the fifth, of the right of contract, or of treaties. The second part, treating of the relations in a state of war, con- sists of two principal chapters, in the first of which the state of war as affecting the belligerents themselves is considered ; and in the second, the state of war as bearing on the rights and obligations of neutrals. 3 PART I. THE ESSENTIAL POWERS OF STATES, AND THEIR RIGHTS AND OBLIGATIONS, ESPECIALLY IN A STATE OF PEACE. CHAPTER I. EIGHTS OF STATES AS INDEPENDENT SOVEREIGNTIES. — COR- RESPONDING OBLIGATION OF NON-INTERFERENCE AND EX- CEPTIONS TO IT CLAIMED OR ADMITTED IN THE PRACTICE OF NATIONS. A STATE is a community of persons living within certain limits of territory, under a permanent organization what ? Avhicli aims to secure the prevalence of justice by self-imposed law. The organ of the state by which its rela- tions with other states are managed is the government. A body of pirates may be organized under law, but is no Pirates no State, being associated for temporary purposes, and designing to act unjustly by its very existence. A state might arise out of a nest of pirates, but would not begin to be a state until it laid aside its piratical character. Thus it has been doubted whether the Barbary powers were any- thing more than associations of pirates. But having groivn in the course of time more just and civilized, they are now taken into the community of nations.^ Those pirates of Cili- cia and Isauria, on the other hand, whose powerful confeder- acy Pompey broke up, clearly formed no state, their settle- ments being strongholds contrived to secure their families and their plunder. 1 Comp. Bynkershoek, Qwzst. Juris Publici, i., § 17. §37. RIGHTS OF STATES AS SOVEREIGNTIES. 35 § 37. From the nature and destination of a state, it must in a sense be as truly separate from the rest of the world, Essential at- as if it were the only state in existence. It must have an exclusive right to impose laws within its own territory, the sole regulation in general of its subjects, the sole determining power in regard to the forms of its or- ganization. No reason can be assigned why in a group of states one should have a right to interfere in the legislation or administration of the rest, which would not give each of them the same right in turn. Nor can any reason be found why one state ought to have more rights or different rights than any other. W e find it necessary for the conception of states, and for their occupying the sphere which the Author of so- ciety has marked out for them, to predicate of them sove- reignty^ independence, and the equality of each with the rest. And these its attributes or rights each has a right to pre- serve ; in other Avords, to maintain its state existence. These three attributes cannot exist apart, and perhaps the single con- ception of sovereignty, or of self-protection, may include them all. (§ 17.) By sovereignty Ave intend the uncontrolled exclusNe exer- cise of the powers of the state ; that is, both of the power of entering into relations Avith other states, and of the power of governing its OAvn subjects. This power is supreme within a certain territory, and supreme over its OAvn subjects wherever no other sovereignty has jurisdiction. By independence we intend to set forth the negative side of sovereignty, that is, to deny that any other state has any right to interfere Avith the exercise of a state’s rio:hts and sovereign poAvers. Thus a state may make treaties, political or commer- cial, or may make war, or change its laAvs, executive officers, or form of goAmrnment, or by a just policy add to its resources so as to become richer and stronger than other states, or plant colonies or acquire territory, or become consolidated Avith other states ; Avhile no other state shall have any just cause to impede or interfere with its unfettered action. 36 RIGHTS OF STATES AS SOVEREIGNTIES. §37. By cqiiality is not meant equality of honor or respect, or equality of rank according to the etiquette of courts, or the right to have the same commercial or political privileges which have been granted to other states, but simply equality of state rights^ that is, an equal degree of sovereignty and the posses- sion of all the same rights which other states exercise. This is, perhaps, simply the exhibition of the quality of state sove- reignty in a different light. States which are truly sovereign are necessarily equal in rights, since the quality of full sove- reignty has no degrees, and the state, as such, has certain rights from its very existence. It is scarcely necessary to add, that difference of size or of power neither adds to nor subtracts from the sovereignty of a state, nor affects its rights in any particular. A state, however, may, by its free act, surrender a part of These attri- tlicse lights, 01’ it may give up its existence and be- beSa^i'iade merged in another organization. The partial In >jy surrender occurs sometimes in confederations. The confeaeriited sj^atcs. couiposiiig sucli Confederation may come to- getlier on a vaiiety of conditions, most of v hich imply a sur- render of sovereignty and independence in some degree, and tlierefore the discontinuance of their existence as states, in the highest sense of the word. Some leagues take away from their members the right of separate peace and war, and per- haps add to this a central board for the adjustment of disputes. Others aim at a closer bond between their members, and con- fer all power, in foreign relations, as well as various other pre- rogatives, upon a central legislature and administration created by the league. Others, again, aim to secure a very loose kind of union, — one which allows its members to make political leagues with foreign states, and to make war and peace sep- arately, but has a common head and a court for the settlement of certain disputed claims. On types like these respectively the Achsean League, our Union, and the German Confedera- tion in its more modeiai form, have been constructed. A state which is under the protection of another may be sovereign in some respects, but not absolutely sovereign. §38. RIGHTS OF STATES AS SOVEREIGNTIES. 37 Sucli was tlie republic of Cracow, while it lasted ; such were lutely the Ionian Islands, under English protection ; or by pro- Moldavia and Wallachia under that of Turkey, with states, the guaranty of the great European powers; Serviaand Egypt under Turkey, with a different dependence ; Monaco under Sardinia.^ For the purposes of international law that state only can be regarded as sovereign which has retained its power sovereignty to enter into all relations with foreign states, what- national law ever limitations it may impose on itself in other re- spects. Thus the states of this Union in the view of our science are not sovereign, for they cannot exercise the treaty-making power, nor that of making war and peace, nor that of sending ambassadors to foreign courts. They can only exercise to- wards foreign nations those private rights which may pertain to any individual or association. It is to be observed, how- ever, that between states of qualified sovereignty the law of nations has application, so far forth as it is not shut out by restrictions upon their power. In a state which is formed by a union of states, there is no doubt that the central government is responsible for the acts of bodies which have no existence in the view of international law. There is a weak point in our Constitution in this respect, for the responsibility must be borne by the central government, but the evil cannot always be abated. (Comp. Phillimore, 2d ed., i., 162, § 130.) 2 § 38. A state is a moral person, capable of obligations as well as rights. These relations continue after it has passed through a change of constitution, for notwithstanding the change the ^ Comp. Wheaton, Elements, i., 2, pp. 70, 71. 2 ilcLeod, a Biitish captain, concerned in the capture of the Caroline (see § 174), was taken in the State of New York, and tried for murder. Great Britain assumed the responsibilit}" for his acts and demanded him. Our government saw the justice of tliis, but could not force New York to give him up. Congress passed a law after this giving the Courts of the United States jurisdiction, where a foreign government assumes the responsibility of a crime. ( U. S. Stat., v., 539.) T. S. 38 RIGHTS OF STATES AS SOVEREIGNTIES. §38. state may still preserve its attributes and functions. No act of its own can anniliilate an obligation to another state •, ligaUonsnot aiid its riglits still continue, unless its former consti- a'^chTpge of tutioii of govemmeut was the condition on which the goverumeut. gf other states towards it were founded. The general rule then, as all admit, is, that rights and obliga- tions survive a change of government or a revolution. So when a nation separates into parts, or unites with another state to form a new whole, it cannot, even by such a process, which destroys or modifies its existence, divest itself of its obligations. Thus debts due to foreigners outlast all such mutations, and not to provide for their payment would be a violation of right. When at the formation of our Federal Constitution the States’ debts were assumed, and when at the separation of Norway from Denmark the old debt of the united countries was equitably divided, these were acts of simple justice and good faith. It may happen, however, that a union or division of states renders a past obligation of treaty impos- sible, or inconsistent with present relations. Thus, suppose that Scotland before its union with England had engaged to furnish France with a contingent of troops. This engagement could hardly be thought binding after the union ; much less Avould one be binding, which contemplated an alliance against the very country with which a union now subsisted. It may be said, indeed, that the prior engagement forbade the forming of a new engagement inconsistent with it. This is, indeed, a rule of right, but not a rule which is valid against important state necessity. There is another extreme case, again, where a change of government may dissolve prior obligations. It is where a despotical or usurping government has contracted debts or made treaties against a nation attempting to recover its liberties. The government is de facto in possession of authority, and thus its acts are lawful ; nevertheless obligations entered into to subjugate the people must be regarded in this extreme case as pertaining to the government alone, and not as resting on the people. (Comp. § 153.)^ 1 There is a distinction between the sovereignty of a state and that of a prince §40. EIGHTS OF STATES AS SOVEREIGNTIES. 39 §39. A state may sustain relations to other states, and perform its offices generallj^ under any form of government. aii forms of The law of nations preserves an entire indifference to constitutions, so long as they do not prevent fulfill- iiu^er^atioiT-^ pent of obligations. Every state is in its eye legit- iinate. And in matter of fact the countries which profess to be bound by the Christian or European law of nations, differ exceedingly from one another in their constitutions, which con- tain specimens of absolute and constitutional hereditary mon- archy, of confederated democracies, and until 1870 of an elect- ive ecclesiastical principate. § 40. Hence it follows that if a state has altered its form of gov- ernment, or by some revolution, peaceful or violent, has suffered a disruption, or has become united with aiiaw knows another, all these things are beyond the province of m°ints'’Je™ international law, whose only inquiry is, whether a cetain community or organization is in matter of fact a separate independent existence, performing the functions of a state, and able to take upon itself state responsibilities. The question of a state’s right to exist is an interyial one, to be decided by tliose within its borders who belong to its oi’ganization.^ To bring the question before external powers, not only destroys sovereignty, but must either produce perpetual war, or bring on the despotism of some one strong nation or strong confeder- acy of nations, requii’ing all others to conform their constitu- tions to the will of these tyrants. Moreover, it is a question The latter is only representative, — a mode of exercising the power of the former. If now the prince is only in form, and not really, the representative of the state, his acts in extreme cases can be repudiated. 1 Bluntschli (Mod. Volckerr., § 19) makes the following neat statement. The questions whether, why, and in what form a new state has come into existence belong to state or political right. The question whether and in what capacity a newly formed state may receive admission into the community of states is e sen- tiallv an international one. 40 RIGHTS OF STATES AS SOVEREIGNTIES. §40, outside of the law of nations, which presupposes the fact that nations exist and have rights, and therefore cannot first inquire into their right to exist. On the other hand, tl)e fact of the existence of a state is in general an open one, easy to be judged of, one which involves no decision in regard to the advantages of one form of government over another, and the only fact whicli nations need to know, in order that they may enter into and fnlfill reciprocal obligations. With these principles the practice of nations on the whole, and in the long run, agrees. All in the end acknowledge the government de facto. Of course, nations which dread revo- lution will he more slow to allow the title of a revolutionary government, or of one where a family of princes of the same blood, or who have been long allies, are driven from the throne, but they must submit at last to the inexorable facts of divine Providence and history. And if this rule could he overthrown, if a nation or set of nations should act on the plan of with- holding their sanction from new nations with certain constitu- tions, such a plan would justify others who thought differently in refusing to regard the former any longer as legitimate states. All history is full of examples of such recognitions. Hol- land and Switzerland, long after their iirdependence was ac- knowledged in the diplomacy of most European states, were formally admitted into the brotherhood of nations at the era of the peace of Westphalia. The United States, the Spanish states of South America, the two French empires, the king- dom of Greece, all arose from revolutions, and have been ac- knowledged to possess the full functions of states. Such, too, has been the case in regard to states Avhich have changed the succession, as England in 1G88, Sweden in 1818, and also where a disruption has taken place, as that between Holland and Belgium in 1830 ; nay, such iniquities as the partitions of Poland have become facts of history, into which the laAV of nations claims no right to look. It is almost needless to say that this rule cannot have its RIGHTS OF STATES AS SOVEREIGNTIES. 41 § -H. application, as long as there is evident doubt Avhetlier a gov- ernment is a, fact. If the question is still one of armed strife, as between a colony and a mother country, or between a state and a revolted portion of it, to take the part of the colony or of the revolted territory by recognition is an injury and may be a ground of w'ar ; but every nation must decide for itself whether an independent state be really established, and needs not to wait until the party opposing the revolutionary effort has accepted the new order of things. It is a safe rule in contests involving the violent separation of a state into parts, that when the mother country, in the case of a colony, or the leading portion of a state, in the case of disruption, gives up active efforts to restore the old order of things by war, other states may regard the revolution as perfected, and a new state as having come into the world. § 41. The rule laid down by Mr. Harcourt, in the “ Letters of His- toricus” (1-35), is substantially the one given in the text, and is shown by him to have guided the action of the British gov- ernment. It is the only rule consistent Avlth justice, for it is based on the de facto independence of a newly organized com- munity which the nation or state, to which it formerly be- longed, has ceased to attempt to subjugate. Policy may delay the time of recognition after, perhaps long after the de facto independence of such a community has begun, but cannot act as if that were a fact which is not. One or two passages from a speech of Lord Lansdowne, quoted in these letters, are instructive: “Your lordships are now called upon to determine whether you will advise the Crown to recognize them [the Spanish South Ameri- can States] in the form of independent states — a question which, be it recollected, involves a twofold consideration : first, whether you possess the right to make tliat acknowledgment, and, secondly, whether .... the expediency of exercising that right without delay is equally clear.” On the first point he says: “I know of no principle or mode by which we can 42 RIGHTS OF STATES AS SOVEREIGNTIES. §41. ascertain whether we possess that right but by considering, in the first instance, whether those states which form the object of our present consideration are de facto independent ; and, secondly^ if they are de facto independent, whether there be any prospect of the old government of Spain ever being en- abled to recover its command of them so as to possess the advantages she formerly did from them ; and thirdly . . . . whether they have proved themselves disposed and able to maintain those relations of amity and commerce which ought to exist between independent and friendly nations.” If a crit- icism were made on these extracts, it would naturally touch the second position. Whether an old government, in any case, would ever be enabled to recover a revolted province or colony now independent, is more than mortals can tell. This goes beyond the regions of fact. It would be safe to say. Has an old government given up de facto the struggle to subdue its colony ? The third point, too, ought to be modified, if not omitted entirely, as touching the expediency of the recog- nition. When Louis XVI. recognized the United States, it was fol- lowed by war, and for this the French were prepared. As Mr. Harcourt remarks, an intervention creating a state, such as those in the cases of Belgium, 1830, and Greece, 1827, is a transaction of another nature, beginning in armed force — if resistance is offered — and involving recognition, but causing the fact of independence by the prior action of the third party. It is, in fact, a hostile measure from the begin- ning. § 42. No state is authorized to render assistance to provinces or Assistance coloifies Avhicli are in revolt against the established government. For if the existence and sovereignty of a state is once acknowledged, nothing can be done to impair them ; and if tlie right of intei’ference — in favor of liberty, for instance — be once admitted, the door is open for taking a part in every quarrel. On the other hand, there is nothing in the law of nations §43. RIGHTS OF STATES AS SOVEREIGNTIES. 43 ■which forbids one nation to render assistance to the estab- lished government in such case of revolt, if its assistance is invoked. This aid is no interference, and is given to keej) up the present order of things, which international law takes under its protection. It may be said that this rule, together with the unlawfulness of taking the side of a revolutionary party in anotlier state, must prevent wholesome reforms, that the partisans of despotism may thus use their power against free institutions, while the partisans of the latter may not op- pose despotism. That this effect may follow is quite possible ; still the rule is an impartial one, as it applies to any existing state, whether free or absolute, to attempts against existing liberty as well as against existing tyranny, ddie only other conceivable rules of action for states are, that in internal quar- rels every foreign state may take whicli side it pleases, or that no state ought to assist either party. The former coui’se of action will find no advocates ; the other, which the law of na- tions cannot be expected, — -for the pi'esent at least, — to rec- ognize, must indeed prevent some revolutions from being un- dertaken, but cannot prevent a change of government when demanded by a nation’s united voice. §43. The rule of non-interference in the affairs of other states is then an established principle. But the exceptions to Exceptions it which are admitted, or which are claimed to exist, J,on^nter. are of great importance, and there is considerable dif- culty in determining what is lawful interference and what is unlawful. For, first, tliei’e may be interference without a show or pretense of justice. In the second place, a nation which has or pretends to have causes of war with another, aids the revolted provinces of the latter in the exercise of the war-right of crippling its enemy. In the third place, there are instances of interference which can be explained neither on the ground of injustice, nor of a state of Avar, and Avhich the usage of Christian or of many Christian states tolerates. 44 RIGHTS OF STATES AS SOVEREIGNTIES. § 43. Whatever be the interference, it can he justified only as an ^ , extreme measure, and on one of the two following grounds: (1.) That it is demanded b}^ self-pres- ervation; (2.) That some extraordinary state of things is brought about by the crime of a government against its subjects. And upon these grounds we must judge, not only of the lawfulness of interference at any time pro re 7iatd, but also of the lawfulness of treaties contemplating such interfer- ence in the future.^ From the nature of these grounds it ap- pears that they are more or less vague and under the influence of subjective opinion. The danger to a state’s existence from the designs of another, or of others, evidently cannot be mea- sured. While on the one hand mere suspicion, or calculation of remote probabilities, can be no justifying cause of action ; on the other it is hard to say, just as in cases of individual morality, how much evidence is sufficient to sanction that pro- cedure, which in ordinary times is unlaAvful. Thus much may be laid down, that a danger resulting from the healthy and prudent growth of another state is no reason for interference whatever, and that good evidence of unjust designs, drawn from conduct, ought to be obtained before any measures may be taken to prevent them. 4'he extreme case of extraordinary crimes, committed by a government against its subjects, is still less capable of exact definition. Here, however, the danger of erring is less than in the other instance, because interference here is more disin- terested ; and the evil results of a mistake are less, because such cases are comparatively rare. §44. Having premised thus much in regard to valid pretexts for interference, let us look now at the actual cases in which in- 1 If the principles of intervention cannot stand, tronties of iruaranty, -which con- template such intervention, must he condemned also ; for they have in view a re- sistance, at some future time, to the endeavors of third parties to conquer or in some way control the piarantecd .states in question. An agreement, if it involve an unlawful act, or the prevention of lawful acts on the part of others, is jdainly unlawful. §44. RIGHTS OF STATES AS SOVEREIGNTIES. 45 ternational law gives, or is claimed to give to it a sanction. We shall consider first the balance of power. The meaning of the balance of power is this : that any Eu- ropean state may be restrained from pursuing plans of acquisition, or making preparations looking to- ence for the --i- 1-1 -n 1, balance of wards future acquisitions, which are judged to be power, hazardous to the independence and national existence To prcwnt of its neighbors. In further explanation of the sys- tem we may say, (1.) That it matters not whether the actual ratio of power between states is in danger of being disturbed by unjust or by just means, provided only the means are polit- ical, not economical and strictly internal. If, for instance, the sovereign of a powerful state should in a just Avay seat one of his family on the throne of a neighboring state, the justice of the transaction would not be a sufficient protection against the interference of other powers. (2.) That acquisitions out- side of Europe have not hitherto been dra^vn into this policy. England lias by degrees become a predominant power in sev- eral quarters of the world without provoking the interference of the Continent. The reason is, that foreign acquisitions affect the political balance only in an indirect way. (3.) The system has been apjilied to power on the land, and not much to power on the sea. England has acquired, undisturbed, a great predominance on the sea, while the balance of power has been in full exercise. The reason is obvious. Power on the sea cannot directly control the political relations of Europe, nor destroy the independence of states. (4.) The system has not yet been carried out beyond the borders of the European states, Turkey included. The reason is, that the transatlantic states have not only come at a recent period into the Euro- pean international system, but can, as yet, have no apprecia- ble influence in European affairs. The balance of power is a maxim of self-preservation, wliicli must naturally arise among states which are so contiguous to one another as to be liable to sudden invasions. Suppose a confederacy of states to have free power of war and peace, and that the terms of union guaranteed to each state an inde- 46 RIGHTS OF STATES AS SOVEREIGNTIES. §44. pendent existence. In sncli a league, if one strong member threatened the existence of Aveaker ones, it would be the duty of all to interfere. Eurojoe resembles such a confederacy, and the balance of power is the guaranty of national existence against the designs of states of the first rank. Let the mem- bers of such a loose union be removed many thousand miles from one another by tracts of ocean. The self-preserving principle noAV apprehends no danger, and a system of balances is useless. § 45. . The maintenance of a certain balance of power, as a fact, if iiistoricaiii- ^ I’iglit, characterized the politics of Greece, lustrations, Pelopounesiau war Avas really oAving, says Thu- C3'dides (I., 23), to the alaim Avhich the groAvth of Athens excited in the confederates, at the head of AA’hom AA^as Sparta. When at the end of that Avar Athens Avas subdued, Thebes and Corinth desired its destruction ; but the Spartans justly regarded its existence as necessary in the politics of Greece. Subsequently, Athens, wlien Tliebes Avas beginning to be too poAverful, Avent OA'er to the side of Spai’ta, her old enemy. In the Middle Ages a sj^stem of equipoise in Italy Avas put into motion bj^ the Popes, as soon as the German emperors became strong in the Peninsula. The Pope's policy AA'as to have tAVO Italian interests Avhich could be set arrainst one another, at the pleasure of the Roman See, Avhich thus secured its OAvn safety and influence. But a nearer approach to the modern balance of power is seen in the Italian affairs conse- quent upon the claims of the French kings, Charles VIII. and Louis XII., to Naples and Milan, from 1494 oiiAA^ards. The dangers from the French invasion under Charles, led Spain, the Pope, and Venice to combine against him. Then in 1508 the league of Cambray brought all the poAA^ers involved in the Italian quarrels into a common Avar against Venice for her destruction. Tlien in 1510, the Pope, fearing that the ruin of Venice Avould leave Italy exposed to France, formed the Holy League to drive this latter poAver out of the Pe- ninsula. It must be confessed, hoAvever, that the league of EIGHTS OF STATES AS SOVEREIGNTIES. 47 § 45. Cambray against Venice was dictated by motives mncli more unworthy than those of self-preservation, and had less to do with maintaining the integrity of Italy than with rapacity and revenge. Not long after this the Austrian family, in two lines, held Spain and the German Empire with other important territorial possessions, and the great resources of these allied houses seemed to be dangerous to the European system. France now was the weight in the opposite scale. The unaccomplished schemes of king Henry IV. were carried out by Richelieu, when he aided the German Protestants and Sweden against Austria ; and the peace of Westphalia in 1618 prevented, thencefor- Avard, this state, holding as it did the office of Emperor in its hands, from becoming formidable either to Europe or to Germany. It Avas now the turn of France to feel the force of the balance of poAver. The ambition of Louis XIV. AA'as thought to endanger the existence of other European states', and a universal monarchy seemed to be at hand. The coalitions of nearly all Europe, Avhich resisted and finally humbled the Grand" Monarch, are among the most righteous examples of measures for preserving the balance of poAver Avhich history records. Some of the means, hoAvever, Avhich Avere adopted for the preservation of the balance at this time, Avere of doubt- ful justice and policy. It was right to set bounds to the ambition of Louis XIV. ; it was right, when his intrigues pro- cured the nomination of his grandson to a throne Avhich had been solemnly renounced for his postei'ity, to endeaAmr to prevent, by force of arms, this accumulation of poAver in the Bourbon line ; but what justice was there in the two partition treaties of 1698 and 1700, Avhich disposed of territories apper- taining to the Spanish CroAvn AAnthout asking leav^e of the king or nation ; and was not this high-handed measure a failure in policy, as calculated to offend the pride of Spain? Since the time when the balance of poAA^er played such a part in the days of Louis and William of Orange, it has been repeatedly acted on, and may be said to be an established part of the 48 RIGHTS OF STATES AS SOVEREIGNTIES. § 45. international law of Europe. The most memorable instances of its application in recent times, liave been the interposition of the four powers in 1840, which forced Mehemet Ali to re- nounce the provinces of the Turkish empire, of which he held * possession, and that of France, England and other powers, in 1854, to preserve the integrity of the same empire against the designs of Russia. 46. We have already seen that where one nation’s aid is invoked 2. interfer- ^7 government of another for the purpose of put- Teiit revoiu dowi a revolt, such assistance is not opj)osed by tions. nations. Should it be given in the spirit of hostility to free institutions, the motive lies beyond the or- dinary sphere of this science. But a part of the European powers have attempted to establish a right of interference to put donm revolutionary principles in that continent, whether their aid be called for or not. This principle has been avowed, if we mistake not, only since the French revolution ; for only since then has absolutism become conscious of its dangers, and of the hatred felt towards it by multitudes of persons scattered through the nations. The plea is, as in the case of the balance of power, one of self-preservation. The stability of all govern- ments, it is alleged, and of all institutions sustained by govern- ments, is threatened by the propagandists of liberty ; and even the dread of revolution so greatly paralyzes the energies of states that everything must be done to make it as remote as possible. It is admitted that no interference undertaken for the direct and sole purpose of spreading absolute principles, or absolutism itself, or even for that of crushing free principles, or of overturning settled governments or constitutions set up in an illegitimate way, is to be justified ; but it is claimed that revolutions in modern times have been sources of incredible evils, and that the so-called right of a people to alter its government by force, is calculated to bring upon Europe eter- nal commotion and insecurity. §47. EIGHTS OF STATES AS SOVEREIGNTIES. 49 §47. While the French revolution was in progress * some of the leaclinof powers of Europe had shomr a disposition to interfere in the affairs of France, partly on the interference for or OTound that former treaties had been violated, and against rcv- ® n T c •! c T-I olutions. partly because the king and royal family of h ranee were restrained in their liberty and treated with dishonor. A circular of the emperor of Germany, of July 6, 1791, invited the principal powers of Europe to declare to the French nation among other things, that the sovereigns “would unite to avenge any further offenses against the liberty, the honor and safety of the king and his family ; that they would consider as constitutional laws only those to Avhich the king should have given his free assent ; and that they Avould employ every means of terminating the scandal of a usurpation founded on rebel- lion, and of Avhich the example ivas dangerous to every govern- ment.” On the 27th of August, in the same year, the same sovereigns, Avitli the king of Prussia, signed a declaration to the same effect, in which they invited the monarchs of Europe to unite Avith them in using “ the most efficacious means to put the king of France in a state to enable him Avith perfect free- dom to lay the foundation of a monarchical goA'ernment, equally consistent Avith the rights of sovereigns and the welfare of the French nation ; in which case they Avere resoh^ed to act promptly and Avith necessary forces to obtain the proposed common object. In the mean time they would give the neces- sary orders to hold their troops in readiness to take the field.” ^ Louis having accepted the iieAV constitution on the 13th of September, 1791, and announced to foreign poAA^ers his inten- tion of supporting it, there AA^as no pretext of a restraint upon the king’s liberty for an armed mteiwention in the affairs of France. But unsettled questions in dispute continued, and at 1 Comp- Wheaton’s Ilistorjj, p. 347 et seq., and his Elements, ii., 1, 102-109, which I have freeiy used. 2 Wheaton’s History, p. 346 seq. The passages in quotations through this paragraph are borrowed from that work. 50 RIGHTS OF STATES AS SOVEREIGNTIES. 47. length, on the 7th of April, 1792, the Austrian ultimatnin de- manded, together with the restoration of the Venaissin to the Pope, and of their possessions and privileges in Alsace to the princes of the Empire, the reestablishment of the French monarchy on the basis of the French king’s declaration of the 23d of June, 1789. This necessarily led to the decree in the national assembly that France was in a state of Avar Avith Aus- tria. The king of Prussia, on the 26th of June of the same year, 1792, announced to the Avorld the reasons Avhich induced him, in conjunction Avith Austria, to take up arms against France. Among them Ave mention “ the propagation of prin- ciples subA'ersive of social order, Avhich had throAvn France into a state of confusion ; ” and “ the encouragement and even official publication of Aviltings the most offensive against the sacred persons and laAvful authority of sovereigns. To suppress anarchy in France ; to reestablish for this purpose a laAvful poAver on the essential basis of a monarchical form ; and by these means to secure other governments against the crim- inal and incendiary efforts of madmen, — such the king de- clared to be the great objects of himself and his ally.” The declaration of Austria dreAV forth at once a counter statement from the national assembly di’aAvn up by Condorcet, AAdiich, among other things, claimed for every nation the ex- clusive right of making and changing its laAvs ; denied that France had threatened the general tranquillity, seeing she had renounced all designs of conquest ; declared that the avoAval of the doctrine of the sovereignty of the people, Avhich the nation had made, could not be regarded as disturbing the peace of other states ; and rebutted the charge that French- men had excited other nations to insurrection ; Avhilst, on the other hand, emigrants fi’om France had receiA^ed aid and en- couragement from those Avho brought these complaints, and attempts had been made to excite civil Avar in France. Such complaints Avere unreasonable “ unless it Avere laAvful to extend servitude and unlawful to propagate liberty ; unless every- thing be permitted against the people, and kings alone have rights.” O § 47. RIGHTS OF STATES AS SOVEREIGNTIES. 51 England could not, in consistency "vvitli the historical devel- opment of its OAvn institutions by means of a revolution, adopt the principles on Avhich the continental poAvers declared Avar against Erj^nce. An attitude, hoAveAmr, far from friendly, Avas obsei’A^ed toAvards that country, and, among the causes of com- plaint, one A\ms the encouragement given to reAmlt in other countries, not only by emissaries sent to England, but by a de- cree of the Convention, Avhich Avas said to ex^iress the design of extending French princij)les and of promoting reAmlutions in all countries, even those Avbich Avere neutral. At length, on the death of Louis, in the beginning of 1793, the French ambassador Avas ordered to leave the kingdom. A state of Avar ensued, during Avhich hlr. Pitt declared that there had been no intention, if the country had not been attacked, to in- terfere in the internal affairs of France. But, no doubt, the atrocities in the summer of 1793, and the closing tragedy of the king’s execution, Avere motives, if not pretexts of hostility. Nor can there be much doubt that the interference of the Eu- ropean poAvers, aboA'e spoken of, produced, or at least intensi- fied, those atrocities, by arousing the national feeling of the French, by exciting distrust of the king’s good faith, and by making it apparent that no terms could be kept Avith the soA’ereigns. The reAmlution had its course. The interference Avas avenged, and the parties to it Avere humbled. But at length France, Avhich destroyed the independence of half of Europe, lost its oAvn, the empire fell, and the old Bourbon dynasty Avas restored. During the occu- pation of Paris, consequent on the battle of Waterloo, the three rulers of Russia, Austria, and Prussia, joined afteiuvards by the French king, formed the Holy Alliance, Avhich has been regarded as a league of absolutism against the rights and the freedom of the nations. This famous leagiTe, hoAvever, at its inception, appears to have had no definite object in vieAV. It Avas a measure into Avhich the other sovereigns entered, in order to gratify the emperor Alexander, Avhose romantic mind, then under the influence of Madame Krudener, contemplated 52 RIGHTS OF STATES AS SOVEREIGNTIES. §47. a golden age, in which the intercourse of nations should be controlled by Christian principles. The parties to the Holy Alliance bound themselves, appealing to the Holy Trinity, to exercise their poAver according to the principles , of religion, justice, and humanity ; to afford one another on all occasions aid and help ; to treat their subjects and soldiers Avith paternal feeling, and to I’egard their people as members of a great Christian family, Avhose guidance was entrusted to them by God.i The congress of Aix-la-Chapelle, at Avhich the five great Congress of poAvei's Avere represented, and AA'hich removed the pcHcrsept ’bach, 1820, ‘fnd big European poAver, and certainly not accordant onwards. ing of discontent AAutli Avith a rio'orous vieAV of the laAV of nations. A feel- O the anti-liberal movements of most of the continental poAvers had been groAving in intensity in many parts of Europe, AA’hen, in 1820 and 1821, reA’olutions broke out in rapid succession in Spain, Najiles, and Sardinia, and the 1 The whole compact is given hy Mr. Manning in an English version, pp. 82-84, of ed. 1. EIGHTS OF STATES AS SOVEREIGNTIES. 53 i §47. constitution of Cadiz, of the year 1812, was proclaimed in all the three kingdoms. The alarm excited by the revolutionary spirit was the occasion of convoking a congress at Troppau in Silesia, in October, 1820, which was removed near the end of the same year to Laybach in Styria, and at which not only the five great powers were represented by their sovereigns or by ambassadors, but the king of Naples and deputations from small poAvers appeared. Against the proposed intervention in the affairs of Italy the British government protested in strong terms, although the existing ministry Avere not averse to the suppression of revolutionary liberalism ; Avhile, on the other hand, the French government approved openly of the inter- vention, in order to gratify the ultra-royalist party at home, but secretly dreaded the Austrian influence Avhich such a meas- ure AA'Ould increase. Austria, thus supported, sent an army into the Peninsula, overthreAV the revolution almost Avithout a bloAV in the spring of 1821, and brought back the old abso- lutism in all its rigor. The circular despatch of the sovereigns of Austria, Russia, and Prussia, justified these measures by alleging “ that there existed a vast conspiracy against all establislied poAver, and against all the rights consecrated by that social order under whicli Europe had enjoyed so many centuries of glory and happiness ; that they regarded as disavoAved by the principles which constitute the public right of Europe all pretended re- form operated by revolt and open hostility ; ” that they op- posed a “ fanaticism for innovation, Avhich Avould spread the horror of universal anai’chy oA^er the civilized Avorld ; that they AA’ere far from Avishing to prolong this interference be- yond the limits of strict necessity, and Avoidd ever prescribe to themselves the preservation of the independence and of the rights of each state.” On the other hand the British govern- ment, Avhile it acknoAvledged the right to interfere, Avhere the “ immediate security or essential interests ” of one state are seriously endangered by another, denied that “ this right could receive a general and indiscriminate application to all revolutionary governments.” Such interference was an excep- 54 EIGHTS or STATES AS SOVEREIGNTIES. §47. tion, and “ could not, without the utmost danger, be incorpo- rated into the ordinary diplomacy of states, or into the insti- tutes of the law of nations.” ^ Soon after this, in the middle of 1821, a royalist insurrection occurred in northern Spain, to which France so far Congress of i i i n i • VCTona, Oct. extended aid as to allow the insurgents to gather along the borders, to retreat in case of need across the line, and to make open preparation of arms and money on French soil. A congress had been arranged to meet at Verona when that of Laybach broke up. The principal measure here agitated was armed interference in the affairs of Spain, which, if undertaken, would naturally be the work of France. The British envoy, the Duke of Wellington, not only declared the refusal of his government to participate in any such proceed- ing, but also that England would not even attempt to persuade Spain to conform to the views of the Congress. The French envoys, Montmorency and Chateaubriand, against express in- structions of their court, urged forward the intervention, which was supported by the other powers, and energetically by Russia, Avhich power at Laybach had hung back from decisive move- ments by force of arms. The envoys acted herein in the in- terest of the ultra-royalist party, which was thus able to carry its measures through. For a French army occupied Spain, penetrated as far as Cadiz, overthrew the constitution of Cadiz to which the king had given his assent, and left him “free,” but the country enslaved. No stretch of interference had gone so far as this, for Spain would have had a settled constitutional government, and probably settled peace, unless the agitators had looked for aid to foreign power. § 48. The proceedings at Verona indirectly gave rise to what has been called the jNIonroe doctrine,^ which met the reigning 1 Circular despatch of the sovereigns, etc., Layb.ich, May, 1821, and Lord Cas- tlereagh’s circular despatcli of January 19, 1821. 2 Compare especially the North American Review for April, 1856, and Mr. Cal- houn’s speech in the Senate on the proposed occupation of Yucatan, May 15 1848. t S48. RIGHTS OF STATES AS SOVEREIGNTIES. 65 ! I principle of interference in Europe by a similar principle in ' the opposite direction. The history of this doctrine 3 jionroe is, in brief, the follo'svmg. At Verona the subject was agitated of attempting, in conformity with the kno^vn wishes of the absolutists in Spain, to bring back the Spanish colonies into subjection to the mother country. This fact hav- ing been communicated to our government by that of Great ’ Britain in 1823, and the importance of some public protest on our part being insisted upon. President Monroe, in his annual message, used the following language : “ That Ave should con- sider any attempt on the part [of the allied powers,] A,o extend their system to any part of this hemisphere as dangerous to our peace and safety and again, “ that Ave could not vieAV any in- terposition for the purpose of oppressing [governments on this side of the Atlantic AAdiose independence Ave had acknoAvledged] or controlling in any manner their destinies by any European poAver, in any other light than as a manifestation of an un- friendly disposition tOAvards the United States.” Soon after- wards a resolution Avas moved in Congress, embodying the same principle, but Avas neAmr called up. But the mere dec- laration of the President, meeting Avith the full sympathy of England, put an end to the designs to Avhich the message refers. In another place of the same message, while alluding to the question of boundary on the Pacific betAveen the United States and Russia, the President speaks thus : “ The occasion has been judged proper for asserting as a principle, in which the rights and interests of the United States are involved, that the American continents, by the free and independent condition Avhich they have assumed and maintain, are henceforth not to be considered as subjects for future colonization by any Euro- pean power.” Was it intended by this to preclude the South American republics, Avithout their Avill, from receiving such colonies Avithin their borders — of surreirdering their territory for that purpose ? Such a thing, probably, Avas not thought of. jNIr. Adams, Avhen President in 1825, thus refers to Mr. Mon- roe’s principle, while speaking in a special message of a con- 56 RIGHTS OF STATES AS SOVEREIGNTIES. §48. gress at Panama. “An agreement between all the parties represented at the meeting, that each will guard hy its oivn means against the establishment of any future European colony within its borders, may be found desirable. This was more than two years since announced by my predecessor to the world as a principle resulting from the emancipation of both the Ameri- can continents.” Mr. Adams, when Secretary of State under Mr. Monroe, originated the “ principle,” and must have known what he meant. But the principle, even in this tame form, was repudiated by the House of Representatives, in a resolu- tion declaring that the United States “ought not to become parties ” with any of the South American republics “ to any joint declaration, for the purpose of preventing the interfer- ence of any of the European powers with their independence or form of government ; or to any compact for the purpose of preventing colonization upon the continent of America.” On the whole then, (1) this policy is not a national one. The House of Representatives, indeed, had no right to settle questions of policy or of international law. But the Cabinet has as little. The opinion of one part of the government neu- tralized that of another. (2) The principle first mentioned, of resisting attempts to overthrow the libeidies of the Spanish republics, was one of most righteous self-defense, and of vital importance. And such it Avill probably ahvays be regarded, whenever a similar juncture shall arise. But the other prin- ciple of prohibiting European colonization was vague, and if intended to prevent Russia from stretching her borders on the Pacific further to the south, Avent far beyond any limit of inter- ference that has hitherto been set up. What right had the United States to control Russia in gaining territory on the Pacific, or planting colonies there, Avhen they themselves had neither territory nor colony to be endangered Avithin thou- sands of miles. The Monroe doctiune came up again in another shape in 1848. President Polk having announced that the government of Yucatan had offered the dominion over that country to Great Britain, Spain, and the United States, urges on Con- §4S. RIGHTS OF STATES AS SOVEREIGNTIES. 57 gi-ess such measures as may prevent it from becoming- a colony and a part of the dominions of any European power, which would be, he says, in contravention of the declaration of Mi’, ^lonroe, and which must by no means be allowed. i\lr. Cal- houn, in his speech on this subject, shows that the case is very different from that contemplated by Mr. jNIonroe, that the declarations of the latter could not be reg-arded as expressing the settled policy of this country, and tliat they were mere declarations without threat of resistance. The “ colonization ” contemplated by the Monroe doctrine could not ap[>ly to Yuca- tan, and the possibility of England (which was especially intended) acquiring power there was remote. The principle, he adds, “ which lies at tlie bottom of the [President's] recom- mendation is, that when any power on this continent becomes involved in internal warfare, and the w-eaker side chooses to make application to us for support, we are bound to g-ive them support, for fear the offer of the sovereignty of the country may be made to some other power and accepted. It goes infinitely and dangerously beyond Mr. Monroe’s declaration. It puts it in the power of other countries on this continent to make us a party to all their Avars.” To lay down the principle that the acquisition of territory on this continent, by any European power, cannot be allowed by the United States, Avould go far beyond any measures dic- tated by the system of the balance of poAA-er, for the rule of self-preseiwation is not applicable in our case : Ave fear no neighbors. To lay down the principle that no political systems unlike our OAvn, no change from republican forms to those of monarchy, can be endured in the Americas, would be a step in advance of the congresses at Laybach and Verona, for they ap- prehend destruction to their political fabrics, and Ave do not. But to resist attempts of European poAA^ers to alter the consti- tutions of states on this side of the Avater, is a wise and just opposition to interference. Anything beyond this justifies the system Avhich absolute governments have initiated for the sup- pression of revolutions by main force. 58 RIGHTS OF STATES AS SOVEREIGNTIES. § 49 § 49. The attempts to introduce into the European laAV of nations Re.suUsof ^ right of interference in the internal affairs of other wtTp’Lnw states, have come to the following results: (1.) cnceinuie England has constantly protested against such a affairTof principle, and has been scrupulous in placing her in- state.s. terventions on other grounds. When, in 1826, the government of that country, in accordance with ancient trea- ties and on application, sent troops to Portugal to sustain the regency there against the pretensions of Don Miguel, it was declared that nothing would be done to enforce the establish- ment of the constitution, but that others would be resisted in their attempts to overturn it. At that time it was said by Mr. Canning, in the House of Commons, that France had given to Great Britain cause of Avar by her violation, in 1823, of the independence of Spain. (2.) The principle has been applied only in the case of Aveaker nations ; Avhile the tAvo French rev- olutions of 1830 and 1848, Avere alloAved to take their course, and the revolutionary governments Avere soon acknoAvledged. (3.) France cannot, Avithout gross inconsistency, accede to this principle. (4.) The principle, carried out, must bring Chris- tian states into conflict ; for the right of interfering in favor of liberty can be urged even on the ground of self-preservation, as Avell as that of interfering to put doAvn popular moA'ements, since free and despotical institutions must be dangerous to one another’s existence. If the powers of Europe had been equally divided betAveen constitutionalism and despotism, such a prin- ciple Avould not have been avoAved, for it might Avork both Avays. Its avoAval, therefore, can be ascribed only to the con- sciousness of superior might. (5.) The interference, as it can- not prevent the moral and intellectual causes of revolution, by delay only embitters and fanaticizes its spirit. It leaves the payment of a debt at compound interest to posterity. EIGHTS OF STATES AS SOVEREIGNTIES. 59 § 51. §50. The interference of the five great powers in the affairs of the Netherlands has some peculiar characteristics of , 4. Intcrfer* its o-wn. First, the kingdom had been constituted at ence in the tlie Congress of Vienna, out of Holland, Belgium, and certain neighboring duchies, as a kind of barrier between France and Germany. Fifteen years afterwards, on the outbreak of the July revolution in France, Belgium sep^ arated violently from the rest of the Netherlands, and it be- came evident that two such heterogeneous parts could not be welded together. The king of the Netherlands invoked the mediation of the five powers, who first procured an armistice between the parties, then in the character of unauthorized ar- bitrators laid doivn the terms of separation, and finally forced a compliance. The views that governed in the long negotia- tions, which finally lent the sanction of Europe to this divorce, are given at length by Dr. Wheaton in his “ History of the Law of Nations,” and are a most instructive chapter. Belgium ac- quired its independence with the rights and obligations of per- petual neutrality ; a French prince was prevented from occu- pying its throne ; the Scheldt, with other streams and canals common to Belgium and Holland, was to remain free ; Ant- werp, as by the terms of the peace of Paris in 1814, was to be a port without fortifications, and the territory of the new kingdom Avas confined within narrow bounds, because it was born in a revolution. Thus there was “ a compromise in this case between the two principles which had so long menaced, by their apprehended collision, the established order and the general peace of Europe.” Doubtless, if France itself had not just before asserted the right of revolution, the interference here Avould have been directed to the point of healing the schism in the Netherlands by main force. § 51. Interference on the score of humanity or of religion, can be justified only by the extreme circumstances of the case. In 60 RIGHTS OF STATES AS SOVEREIGNTIES. § 51. tlie age Avliicli succeeded the Iveformation, both self-preserva- tion and religions sympathies induced the Pi'otes enccon tiie taiit statcs to aid 0116 another against the superior lision and of might of the Catholic, and to aid the votaries of humanity, witliiii Catliolic couiitries, in order to secure for them freedom of worship. Elizabeth of England sent aid to the revolted Hollanders on religious grounds, and Cromwell's threats slackened the persecution of the Waldenses by the Duke of Savoy. In modern times, the interference of Great Britain, France, and Russia, on behalf of the Greeks, in 1827, was avowedly dictated by motives of humanity. The Greeks, after a bloody contest, had so far achieved their inde- pendence, that the Sultan could not reduce them. Accord- ingly his vassal, Mehemed Ali, of Egypt, was allured to send an army of subjugation into the iMorea, and the atrocious scenes of fanatical war were renewed. The Greeks applied to France and England for help or mediation. At length, in consequence of the battle of Navarino, October 20, 1827, and the French occupation of the IMorea, the Peninsula was evac- uated by Mohammedan troops, and finally the independence of Greece was acknoAvledged. Dr. M'heaton says of these events ^ that the Christian powers were eminently justified in their interference “ to rescue a whole nation not merely from religions persecution, but from the cruel alternative of being transported from their native land into Egjqotian bondage, or exterminated by their merciless oppressors. The rights of human nature — wantonly outraged bj'^ this cruel warfare — were but tardily and imperfectly vindicated by this measure, but its principle was fully justified by the great paramount law of self-preservation. ‘ Whatever a nation may lawfully defend for itself, it may defend for another if called on to in- terpose.’ The interference of the Christian powers to put an end to this bloody contest, might therefore have been safely rested on this gx’ound alone, without appealing to the interests of commerce and of the repose of Europe, which, as well as 'the interests of humanity, are alluded to in the treaty (for 1 Elements, Fait II., chapter i., § 10. RIGHTS OF STATES AS SOVEREIGNTIES. 61 § 52. tlie pacification of Greece, July 6, 1827), as the determining motives of the high contracting parties.” EQUALITY OF SOVEREIGN STATES. § 52. We have already explained equality to denote equality of rights. All sovereign states stand on the same level Equality of in this respect, — the old and the new, large and small, monarchies and republics, — for the conception of a state to be applied to all is the same, and their sovereignty is the same. This, however, is not incompatible with special privileges of a commercial nature granted to one nation before another, or to superior rank in the ceremonial of courts. Formerly the most punctilious rules of etiquette Avere ob- served at most of the courts of Europe. Gustavus of na- Adolphus, Avho said that all crowned heads Avere equal, Avas one of the first to despise pretensions of superiority. Rules are necessary to prevent ambassadors and their Avives from contending for precedence, or feeling that an insult has been offered to them or their country. But Avith all the nicety of court etiquette, such quarrels have frequently taken place. Among the most noted of these disputes, was one of long con- tinuance betAveen the ambassadors of France and Spain.^ The place of France, until the sixteenth century, according to the ceremonial of the Romish See, had been next to that of the German emperor, but, as Charles V. was both emperor and king of Spain, his successor on the Spanish throne claimed precedence of other kings, and thus brought on a collision. At the Council of Trent the dispute rose to such a point that the French declared that they Avould renounce obedience to the Pope, if deprived of their place, and it AA^as only settled by alloAA'ing the Frenchman to continue in his seat next to the Legate Avho presided, and the Spaniard to occupy a seat of eminence opposite to him. The most serious outbreak, hoAV- 1 See Ward’s Hist., ii., 272 seq. (Dublin Ed.) 62 RIGHTS or STATES AS SOVEREIGNTIES. §.52. ever, of this rivalry occurred at London, in 1661, when, ac- cording to the usage of the time, the ambassadors went in procession to meet a newly arrived ambassador from Sweden. The ministers of both nations appeared with an armed retinue. As the Frenchman attempted to put his carriage next to that of the English king, the Spaniards raised a shout, scared the horses, and occupied the place. The French then fired upon them, and received back their fire, so that eight were killed and forty wounded in the encounter ; but the Spaniards, hav- ing during the mel^e cut the ham-strings of the French horses, were able to secure the coveted precedence. Louis XIV. threatened Avar for this outrage, and thus forced the Spaniards into a declaration that their ambassador should never be present at ceremonies Avhere a contest for rank could arise betAveen them and the French. According to the old rules of Eirrope, the Pope (whom Protestant nations and Russia regarded as only an Italian sover reign) ranked highest in dignity, the German emperor next, monarchies before republics, sovereigns before half-sovereigns, and princes of inferior name closed the list. The folloAving order of rank emanated from the Roman court in 1504 : the Roman emperor, king of Rome, king of France, of Spain, Arra- gon, Portugal, England, Sicily, Scotland, Hungary, Navarre, Cypi’us, Bohemia, Poland, Denmark (Avith AA^hich Sweden and NorAvay Avere then united), the Venetiair republic, the duke of Brittany, of Burgundy, Electors of Bavaria, Saxony, Branden- burg, archduke of Austria, duke of Savoy, grand duke of Flor- ence, dukes of Milan, Bavaria, Lorraine, etc.^ The rule* of late acted upon in regard to the rank of differ- ent states and of their sovereigns are, according to Existing -r-r iv ^ ° ° ruks of Heffter, the folloAvmg : — 1 . States to which, for themselves or for their sov- ereigns, royal honors pertain, liaA'e had an external rank be- fore those to Avhich these honors do not belong. Such honors are the right of sending ambassadors of the first class, the use of the royal title, croAAm and corresponding arms, and certain . 1 Heffter, § 28, p. 49, Comp. Suppl. to Dumont, v., 202. EIGHTS OF STATES AS SOVEREIGNTIES. 63 § 52. other ceremonial usages. To this rank belonged emperors, kings, grand dukes, the elector of Hesse, the Swiss republic, the United States of America, the German confederation. 2. Among states of the same class entire equality of rights obtains, but the rule of precedence, in regard to rank, is settled by treaty and usage. Kings and emperors have a general equal- ity, as is indicated by the fact that the former frequently con- nect the latter title with that by which they are especially known. A precedence is given to kings and emperors be- fore sovereigns who have inferior titles, and before republics, “ whose special relation of rank to other states Avith royal hon- ors is not definitely fixed.” ^ There was a certain order of the German states in relation to affairs of the confederation, and to this alone. Half-sovereign qnd protected states rank after those on Avhich they depend. Treaties by Avhich one state concedes the precedence to another over a third, Avithout its consent, are of no obligation upon the latter, and may contain a violation of the respect Avhich is its due. The rank Avhich a state has once obtained is usually not lost by a change of constitution. The tendency of things is, as far as possible, toAA^ards entire equality of states. Thus commercial privileges are fast disappearing, and neAV treaties to a great extent tinctions , , , ^ ° out. concede the advantages given to the most favored nations. The precedence of ambassadors of the same rank is determined simply by length of residence at the court. And special tokens of respect to one nation more than to another, like those claimed by England in certain narroAV seas, have nearly gone out of use. 1 Heffter, § 28, p. 50. CHAPTER II. TERRITORIAL RIGHTS OF STATES AND EIGHTS OP FEOPERTY. — STRICT RIGHT RENOUNCED, ESPECIALLY AS TO THE USE OF NAVIGABLE WATERS, §53. A NATION is an organized community witliin a certain ter- ritory ; or in otlier words, there must be a place where its Property of ^0^*^ Sovereignty is exercised. It may, also, and will teniauonar have property of its own, like individuals and associ- law.what? -itions ; it maj^ even hold such property within the borders of other states, may be the creditor of foreign states or individuals, or, unless the law of a state prohibit, may possess land there on the tenure of private ownership. Upon the property of its subjects, again, it has a certain lien, as a^ipears from the power to lay taxes and the power to use private property for public purposes. The right of eminent domain, however, with which such power over private projierty is con- nected, does not imply that such property is absolutely under the control of the state, or that the state was the prior owner, and conveyed it to the individual under conditions ; but it is rather to be considered as one of necessity, without which, at times, public affairs could not move on, nor the rights of many individuals be protected. Now, although the relations of the state to its territory, to its property, and to the property of indi- viduals are different, yet as far as other nations are concerned, they may all be included under tlie term property. “ Such property of states,” as Heffter well remarks, “ has only in relation to other states the same character which proiierty has. namely, the character of exclusiveness and free disposal,” tha STATES’ RIGHT OF PROPERTY, ETC. 65 § 54. is, of pertaining to the state to the exclusion of all other states, and of being disposed of without restramt on their part upon its will. A state’s territorial right gives no power to the ruler to alienate a part of the territory in the way of barter or sale, as was done in feudal times. In other words, the right is a public or political and not a personal one. Nor in justice can the state itself alienate a portion of its territory, without the consent of the inhabitants residing upon the same, and if in treaties of cession this is done after conquest, it is only the acknowledgment of an unavoidable fact. (Comp. § 161, and Grotius, ii., 6, § 4.) Property of a foreign state or sovereign within the bounds of a state involves no restriction of territorial sovereignty. Territorial servitudes, as right of free harbor, of transit, etc., may exist, but arc stricti juris, the presumption being always in favor of sovereignty. (Comp. Bluntschli, “ Staatsr.,” i., 189.) §54. There is a tendency, in quite recent times, to act, in inter- national arrangements, upon the principle here stated, ^ 1 1 1 1 • ^ 4 . Con.ed to the United States at a certain rate (1856). Wheaton, Dana's note, § 177. — T. S. AND RIGHTS OVER TERRITORY. 69 § 56. § 56. 1. The territory of a state includes all that portion of terra firma AAdiich lies Avithin the boundaries of the state, ^n-hat is ter- as well as the Avaters, that is, the interior seas, lakes, and riA^ers ii'holly contained Avithin the same lines. Thus the sea of Azof, the Volga, Lake Michigan, the Ohio, and the Sea of IMarmora are exclushmly in the territories respectiAmly of Russia, the United States, and Turkey. It maj^ happen that the boundaries of a state are not continuous, or that one part of it is separated from another, as the Rhine-proAunces of Prussia AA’ere formerly cut off by Hesse, etc., from the rest of the kingdom. Or it may happen that one soAmreignty, or a portion of it, is included AAuthin the limits of another. This has been the case more or less in Germany, and Avas formerly true of Avignon and the Venaissin, Avhich Avere Papal territory enclosed in France — hence called enclaves. 2. The mouths of rivers, bays, and estuaries, furnishing access to the land. 3. The coast-sea to the distance of a marine league. Tliis is a regulation dictated by the necessities of self-protection, as is expre.ssed in the maxim of Bynkershoek, “ Terras potestas finitur ubi finitur armorum vis.” For the police of commerce the distance is extended to four leagues, that is, according to the usage preAmiling in Great Britain and the United States, foreign goods cannot be transhipped Avithin that distance Avitli- out the payment of duties. The extent of coast-sea included Avithin national territoi’y has been variously defined. Bynker- shoek, and others after him, limit it by the reach of cannon- shot ; — “ quousque tormenta exploduntur.” (“ He Domim Mar.,” cap. 2, from Avhich place the maxim above cited is taken.) Rayneval limits it by the horizon, a Amry vague and absurd suggestion ; Valin, by the depth of the sea : territory should reach out (lie Avould propose) to Avhere there is no bottom. INIodern Avriters, Avhether limiting it by a marine league, or by cannon shot, agree substantially in making it an incident to teri'itorial sovereignty on the land. Compare Ortolan, “ Diplom. 70 STATES’ RIGHT OF PROPERTY § 57. de la Mer,” vol. i., chap. 8. As the range of cannon is increas- ing, and their aim becoming more perfect, it might be thought that the sea line of territory ought to -widen. But the point is not likely to become one of any great importance. 57. The right to some kind and degree of jurisdiction over a National of coast-sea is now admitted by writers on inter- theooast-sca ’li^tioiial law of all Christian nations,^ and appears in continued. number of treaties ; and yet it was not recognized in Roman law, nor held to by Grotius in a precise sense, nor with a precise limit. He, however, admits that a portion of the sea may be occupied by him wdio possesses t!io land on each side, “ dummodo non ita magna sit pars maris, ut non, cum terris comparata, portio earum videri possit.” But here he seems to be thinking of the coasts of gulfs and bays (ii., 3, 8). From Bynkershoek came the modern, more precise rule ; which first limited the territorial right by a cannon shot and then by a marine league. The reason for the limitation seems to have been to remove the alarms and dangers of foreign war from the shores of friendly states. An important question is. How mucli or what degree of right a state has over tliat part of the high, sea Avliich waslies its shores. The ansAver must be that the right is a limited one. No vessel pursuing its AA^ay on the high seas can commit an offense by sailing Avithin a marine league of the shore. No restriction Avould be possible, and the liberty of the sea to all must not be interfered Avith, unless for an important reason. Such a reason is found in the need of security and of freedom from disturbance of the dAvellers on the coast, or of those Avho, like fishermen, pursue their employments on the adjoining sea ; and in the possible injury to the revenue, if foreign ves- sels could take a position remote from a port, Avhero by means 1 Among the publicists we may mention besides Rynkcr.sbock, Vattel, Liv. 1, § 288; Pbillimore, i , cb. 8; Twi.ss, Rif/his, etc., in Peace, § 172 ; Sir E. Creasy, § 241 ; Ileffter, ed. .5, § 7.') ; Kluber, Morstadt’s revis., § 130 ; Ortolan, I.iv. ii., chap. 8, p. 154, and the autliors there cited ; Hautefeuille, Tit. 1, chapter iii, sec. 1 ; Kent and Wheaton ; Calvo, Liv. v., § 201. § 57. AND RIGHTS OVER TERRITORY. 71 of small craft they could send their goods to the shore or otherwise evade the laws. As for the right of preventing foreign fishermen from catching fish within a marine league of land, and the right of forbidding the transshipment of foreign goods, Avithout paymg duties, at a still greater distance, they will be noticed elsewhere. §§ 59, 212. An important mquiry is whether crimes committed within this belt of sea by persons on foreign vessels come Avithin the jurisdiction of the courts of the adjoining land, or of the coun- try to Avhich the A*essel belongs on board of Avhich the crime was committed. If the crime took place on a vessel Avhich was on its Avay and happened to be Avithin this belt, and the injured party was one of the passengers, the A^essel’s sovereign would Avithout question haA’e the jurisdiction. But AA'hat ought to be said of an injury committed Avithin such Avaters by a foreign vessel Avhere the injured person was Avholly discon- nected from the A'essel? Such a case occurred in 1876, Avhere the Franconia, a German steamer, came into a collision Avith a British steamer within British waters less than three miles from the coast ; which collision resulted in the death of seAnral persons on board of the latter. The German captain, being found on English soil afterwards, was arrested, tried, and found guilty of homicide, but on appeal to the highest court, was acquitted on the ground that he was “ a foreign subject, on a foreign ship, on a foreign voyage, and on the high seas at the time the offense was committed, and so not amenable to the laAvs of the country ; there was, therefore, no jurisdiction to try him, and consequently the conviction was illegal.” Such was the opinion of the Chief Justice, and six of the other judges out of tweh’e. But the decision Avas based on the con- sideration that mere international law, without a law of Par- liament, could not giA’e authority to act in the case, could not alloAV the judges to try a foreigner committing a crime on a foreign A'essel AAuthin the marine league of land. The Chief Justice says, that “ if by the assent of other nations the three miles belt of sea has been brought under the dominion of this country, so that consistently with the rights of other nations, 72 STATES’ RIGHT OF PROPERTY § 57. it may be treated as a portion of British territory, it follows as a matter of course that Parliament can legislate in respect of it. The question is whether legislative action shall be ap- plied to meet the exigency of the case, or judicial authority shall be strained and misapplied in order to overcome the dif- ficulty.” And another of the justices said that, “ although, as hetiveen nation and nation, these waters are British territory, as being under the exclusive dominion of Great Britain, in judicial language they are out of the realm; and any exercise of criminal jurisdiction over a foreign ship in these waters must in [his] judgment be authorized by act of Parliament.” Thus the case somewhat resembled that of a crime defined by treaty Avithout a laAV being made by a legislature to prescribe the penalty. A court could not act upon the case. But the right of the legislature to make the necessary laAvs, or, in other Avords, the right of criminal jurisdiction Avithin the three miles seemed to be affirmed. And indeed, on the Avhole the forum of the territory, nearest to Avhich the injury occurred or the crime Avas committed, seems to be by far the most convenient place for obtaining justice. § 58. 4. Vessels belonging to the citizens of the nation on the high seas, and public vessels, Avherever found, have ^™theica some of the attributes of territory, territory. recpard, hoAvever, to the territorial character of vessels it is necessai'y to be more definite, for if they have this property in some respects but not in all, only false and illogi- cal deductions can be draAAUi from an unqualified statement. Is it true, then, that they are identical in their properties Avith territory ? If a ship is confiscated on account of piracy or of violation of custom-house laAVS in a foreign port, or is there attached by the OAAUier's creditor and becomes bis property, Ave never think that territory has been taken aAvay. For a crime committed in port a vessel may be chased into the high seas and there arrested, Avithout a suspicion that territorial rights have been violated, Avhile to chase a criminal across the bor §59. AND RIGHTS OVER TERRITORY. 73 clers and seize him on foreign soil is a gross offense against sovereignty. Again, a private vessel when it arrives in a foreign port, ceases to he regarded as tearritory, unless treaty provides otherwise, and then becomes merely the property of aliens. If injury is done to it, it is an injury which indirectly affects the sovereign of the alien, whereas injuries to territory, properly so called, affect the public power in an immediate manner. It is unsafe, then, to argue on the assumption that ships are altogether territory, as will appear, perhaps, when we come to consider the laws of maritime warfare. On the other hand, private ships have certain qualities resembling those of territory: (1.) As against their crews on the high seas ; for the territorial or municipal law accompanies them as long as they are beyond the reach of other law, or until they come within the bounds of some other jurisdiction. (2.) As against foreigners, who are excluded on the high seas from any act of sovereignty over them, just as if they Avere a part of the soil of their country. Public vessels stand on higher ground : they are not only public property, built or bought by the government, but they are, as it AA^ere, floating barracks, a part of the public organism, and represent the national dig- nity, and on these accounts, even in foreign ports, are exempt from the local jurisdiction. In both cases, hoAvever, it is on account of the crew, rather than of the ship itself, that they have any territorial quality. Take the crew aAvay, let the abandoned hulk be met at sea : it noAV becomes property, and nothing more. § 59. The high sea is free and open to all nations. It cannot be the property or the empire of a particular state. It of cannot become property^ for it cannot be possessed, or have any persouid action exercised upon it, Avhich must preA'ent a similar action of another. It cannot be mixed uj) Avith labor, or enclosed, or, like Avild land, be Avaiting for any such future action. It can, as little, become the empire. of any particular state. OtherAvise one state might exclude 74 STATES’ EIGHT OF PROPERTY § 5&. others from it, ami from that intercourse for which it is the pathway, which would be inconsistent Avith the equality and sovereignty of nations. Such empire could begin only in the consent of the Avhole Avorld exjaressed by treaty, which Avas never given, or in prior discovery and use. But this last is no ground at all, and if it Avere, Avould Avork against the so-called discoverer in faA'or of the natives of iieAvly found coasts. In fine, the destination of the sea is clearly for the common ben- efit of mankind ; it is a common patliAvay, separating and yet binding, intended alike for all. The liberty of the sea and of navigation is now admitted on all hands. But formerly the ocean, or portions of it, Avere claimed as a monopoly. Thus the Portuguese prohibited other nations from sailing in the seas of Guinea and to the East In- dies. No native-born Portuguese or alien, says one of the ancient royal ordinances, shall traverse the lands or seas of Guinea and the Indies, or any other territory conquered by us, Avithout license, on pain of death and the loss of all his goods. The Spanish nation formerly claimed the right of excluding all others from the Pacific. Against such claims, especially of the Portuguese, Grotius wrote his “Mare Liberum” in 1609, in AA'liich he lays doAvn the general principle of the free right of navigation, and that the sea cannot be made property, and re- futes the claims of the Portuguese to the discovery of countries Avhich the ancients have left us an account of, as Avell as their claims through the donation of Pope Alexander VI. And yet thg countrymen of Grotius, aaTo had been defenders of the liberty of the seas, sought to prevent the Spaniards, going to the Philippines, from taking the route of the Cape of Good Hope. The English, in the seventeenth century, claimed prop- erty in the seas surrounding Great Britain, as far as to the coasts of the neighboring countries, and in the eighteenth only softened doAAUi the claim of property into one of soA^ereignty. Sehlen, Avho in 1635, published his “ Mare Clausum,” Avhile he contends against the monopolizing pretensions of Spain and Portugal, contends zealously on the ground of certain Aveak ancient precedents for this claim of his country. The shores AND RIGHTS OVER TERRITORY. 75 § 5?. and ports of the neighboring states, says he, are the limits of the British sea-empire, but in the wide ocean to the north and Avest the limits are yet to be constituted.^ Russia, finally, at a more recent date, based an exclusive claim to the Pacific, north of the olst degree, upon the ground that this part of tlie ocean was a passage to shores lying exclusively within her jurisdiction. But this claim was resisted by our government, and AvithdraAvn in the temporary convention of 1824. A treaty of the same empire with Great Britain in 1825 con- tained similar concessions. The rights of all nations to the use of the high sea being the same, their right to fish upon tlie high seas, or on banks and shoal places in them are equal. The right to fish in bays and mouths of rivers depends on the will of the sovereign. ^ Thus the right to fish on the banks of Newfoundland is open to all, but there is no right to dry and cure Fishery ^ II* question be- lish, even on the imsettled coasts belonging to any tween the • *1 • • Til A 1 United sovereign, without permission oi tlie same. And states and here a brief sketch of the fishery question betAveen am. the United States and Great Britain may not be out of place. ^ Compare Ortolan, n. s., chap. vii. 2 The liberty of the sea being now admitted, there seem to be no rea.sons of absolute right why a nation should exclude the fishing vessels of another from within a marine league of its co.ast. There is a difficulty in ascertaining, especially along a curved shore, how the line between tbc open and the territorial sc.a is to run, and it is equally difficult for the fisherman to know where the line runs or to kee|) outside of it when it is known. Quarrels of fishermen of two nationalities may be to some extent prevented by such a police law, but its enforcement pro- duces no small amount of hostility. We look for .’ ” § n9. AND EEDEESS OF INJUEIES, ETC, 193 her cargo, ■which had been condemned by an inferior court on the ground of being contraband of war, should be restored, because there was no war, and therefore no contraband of war. The vessel and tlie rest of the cargo had been ex- empted from the decision of the lower court on the ground of the want of special notification. 3d. These transactions had the characteristics of war, al- though of a Avar that was partial or local, and for the most part of little duration. A Avar may be waged on one element and not on the other, or may spend its force chiefly upon one point, or may last for a short time — six Aveeks, for instance. Such a Avar is not taken out of the ordinary category. 4th. The right of blockade is one affecting neutrals, and a new kind of exercise of this right cannot be introduced into the laAv of nations Avithout their consent. The rights most analogous, civil and hostile embargo, may be said to be dying out, and neutrals liaA^e not given their consent to this new form of restriction of their rights. They Avould, if such a practice Avere continued, regard a pacific blockade as an act of Avar under a Avrong name, or claim damages for all injury thereby inflicted on their commerce, Avhich only war rights can interfei’e Avith. In concluding' this subject, Ave notice a transaction which may be introduced by a threat, or threatening measures deserv- ing the name of a conditional declaration of Avar, or contingent Avar, and which resembles pacific blockade. An instance Avill show the nature of such cases. Before any declaration of Avar against Spain, Admiral Hosier, in 1726, obtained the re- lease of tAA'o English vessels detained in the West Indies, prevented the sailing of Spanish galleons from Porto Bello, and gave leave to proAusion ships of the Spaniards to start on their Avay, on condition of their taking out neither plate nor fruits. Spain chose to consider this as Avar, Avhile England regarded it a measure of security ; but Sj)ain, being unpre- pai'ed, only complained for nearly half a year, and the ambas- sador at London declared that the longer continuance of the O squadron in the West Indies, would be a continuance of vol- 13 194 EIGHTS OF SELF-DEFENSE § 119. uiitary hostilities authorized by the English sovereign, and his king, he said, would look on tlieni as such. Still, Hosier was not ordered to withdraw, and the Spaniards began to besiege the fort of Gibraltar. Thej^ killed over three hundred British soldiers, and reprisals were not ordered by England until after- wards. Nor even then did they call it a war. Preliminaries of peace, however, were made between the parties, including their allies, at Paris and Vienna, in 1727. (See Dumont, viii., 2, 146, for the Convention of Paris.) Tn such transactions, there is real war Avithout declaration, as Mr. Ward, the histo- rian, justly maintains in his “inquiry into the manner in Avhich different Avars in Europe have commenced,” etc., pp. 23-28 (London, 1805). The party injured has a right in such cases to regard the condition of things as one of Avai', and neutral states, in the event of a so-called pacific blockade, Avould have an eqnal right to claim that a state of Avar existed. Thus, Avhen such an occurrence takes place, Ave have this sin- gular state of things offered to us : the nation injured and the neutrals declaring that there is Avar, the nation using the violence, that there is not. Surely a state of peace can neAmr involve such contradictions. § 120. War between independent sovereignties is, and ought to be. Commence- avoivccl opcH Avay of obtaining justice. For every war.^ Dec- State lius a light to knoAV Avhat its relations are to- laration. ’wai'cls tliose Avitli Avliom it has been on terms of amit}^ — Avhether the amity continues or is at an end. It is necessarjq therefore, that some act sIioaa^ in a Ava}^ not to be mistaken that a neAV state of things, a state of Avar, has begun. The civilized nations of antiquity generally began AA'ar by a declaration of their purpose so to do. Among the Jloman prac- Greeks, a herald, Avhose person Aims sacred and invi- olate, cariled the neAvs of such liostile intent to the enemy, or accompanied an ambassador to Avhom this business AA'as committed. Only in rare cases, Avhen men’s passions Avere up, was Avar aKy]pvKTo’, is not admissible, nor just, nor good even, since tiie calamities of w.ar afford this advantage, that in acting on the population of countries, tlie}" render war shorter and more unfrequent. It seems in all cases difficult to maintain the proposition that the pillage of private property by privateers is just, rational, and legitimate. One cannot admit that private property, which is free even in the enemy’s land itself, on the soil invaded by an army, victorious and invested with the right of conquest, can be justly taken and plundered on the sea, on that ele- ment free by its nature, which is neither frieiidly nor hostile territoiy. Let us hope that the initiative so glorioiusly adopted by the Congre.ss of Paris, will be fruitful for the future, and that diplomacy will one d.ay reach the point of render- ing commerce free for belligerents as for neutrals, that private goods and citizens, who are strangers to the profession of arms, will be freed from the disasters of war, and that itrivate property will remain outside of contests exclusively concen- trated in armies acting in the name and under the direction of the public ])Ower.” II., § 289. Compare the recent resolutions of the chamber of commerce, of Ham burg and I Ire men, under § 14-7, itifra. § 129. AND EEDEESS OF INJURIES, ETC. 215 ministers of the two powers offered to sign :i convention, with a declaration to the effect that in so doing their governments would not thereby undertake any engagement which should have any bearing, direct or indirect, on the internal differ- ences then prevailing in the United States. This was not what our government wanted, and the matter was dropped. Nor did it prove to be of importance to pursue it, for nearly all the injuries to our commerce proceeded from public vessels of the rebellious States. (Comp, note on § 141.) Since the proposition made by Mr. Se'ward, the govern- ment of the United States has shown no desire, so far as we are informed, to accede to the treaty of Paris. In regard to the other proposition — that all private property in inno- cent trade, of whatever nationality, shall be exempt from capture on the ocean, — an important provision appears in the treaty of 1871, with the Kingdom of Italy, in which the par- ties contract that “ in the event of a war between them, the private property of their respective citizens and subjects, with the exception of contraband of war, shall be exempt from capture or seizure, on the high seas or elsewdiere, by the armed vessels or by the military forces of either party ; it being understood that this exemption shall not extend to ves- sels and their cargoes, which may attempt to enter a port blockaded by the naval forces of either party.” For what seems to be the true policy as to marine warfare, compare § 190 below. § 129. The restrictions on privateering are of three kinds. 1. The laws of some states narrow the range of their op- erations, and regulate the composition of their crews. * • IvGstrictions They ai'e forbidden to cruise in the rivers or within on privateer- the sea-line of a hostile state, and the majority of a vent its ' crew is required to consist of natives.^ But these rules have not passed into international law, or general usage. 2. To give it the character of an lionest and lawful pursuit, 1 Comp. Ortolau, ii., 57-59 ; Hefftcr, § 137. 216 RIGHTS OF SEIT'-DEFENSE § 129. commissions, as already said, are granted, and bonds are taken from those who receive the letters of marque. These regula- tions, which vary with the municipal law of each country, subject the owners and officers of privateers to heavy penalties in case of transgression.^ It is only the commission which gives an interest in a prize, since all captures vest originally in the state. This maxim draws its trutli from the right notion of war, as we have en- deavored to set it forth, — that Avar is undertaken by the state, for the sake of the state, and against another state. 3. Many treaties provide that the subjects of either of the treaty-making poAvers, Avhile in a state of peace, shall not take out letters of marque from a third poAver at Avar Avith the other party, and that those Avho violate this provision may be held by the other party to haA’e committed the crime of piracy. Such treaties of longer or shorter duration have been made, for instance, by the United States, Avith France, Savb- den, Prussia, Great Britain, Spain, Central America, and Co- lombia. In the absence of such treaties, a neutral may Avith impunity accept a military commission from a belligerent, for sea or land service. But municipal hiAV often forbids the citi- zen or subject to take this step. (Comp. §§ 173, 176.)^ 1 For tlie rules of responsibility of owners, commanders, and sureties, comp. Kent, i , 98, 99, Lcct. v. A maritime ordinance of Pedro IV., king of Aragon, in 135G, speaks of such security. A sum of money was to be deposited in the hands of certain public officers by the owner of a vessel. Pardcssus, Collection, 471. And another rule of 1364, p.assed by the German Hanse towns, to the same effect, is cited by De Martens, § 289, note c. 2 By Act of Congre.ss, April 20, 1818, citizens are forbidden to accept commis- sions to cruise against powers at amity with us. — T. S. § 130. AND REDRESS OF INJURIES, ETC. 217 Section II. — Laws and Usages of War, especially on Land. § 130. The subject of prize, or the rules of captured property,^ es])ecially on the sea, we shall consider by itself in . The laws another section. At present we pass on to the am- andu.'^ages portant topic of the laws and usages of war. These rules are necessarily somewhat vague and fluctuating, partly because they have less to do with justice than with some- humanity, where clear lines of definition are want- ing ; partly because much must be left to the discretion of commanders with varying dispositions and principles ; partly because nations sometimes enter with excited passions, some- times with cool calculation, into war, and their spirit will mod- ify all its movements. Kotwithstanding this vagueness, tlie rules of war have grown in humanity and mildness in recent times. The principal causes of this amelioration are, — 1. The growth of a feeling of the brotherhood of mankind fostered by the spirit of Christianity. Thus, for ^ ^ instance, slavery liaving ceased in nearly all Chris- theirameiio- tian countries under the benign sway of the Gospel, how could the old practice of enslaving captives taken in war fail to go out of use ? 2. The influence of writers such as Grotius, and the exam- ple of great captains, who under the control of humane feel- ings have followed a better pi’actice. 3. The greatly increased intercourse among Christian coun- tries the inhabitants of which arc lao longer strangers to one O o another, and beyond each other's view, but are connected by various ties, which soften the asperity of a sense of injuiy. 4. The marked separation of the soldiery as a distinct class yet are im- proving. ^ Compare for this section, the instructions for the government of armies of the Uuitecl States in the field, prepared by Dr. Lieber, revised by a board of officers, and approved by the President in 1863. 218 RIGHTS OF SELF-DEFENSE § 130, from the citizen.s, and an impi-oved feeling among soldiers themselves ; which is cine to the substitution of regnlar for irregular ti’oops, to the spread of professional honor among officers, and to the cooler and more scientific way in which Avars are carried on. 5. Add to this that an organized commissariat rendeis it unnecessary for the soldier to procure his daily food by plun- der, Acdiile modern systems of finance and credit meet the ex- penses of armies abroad. “ Paid soldiers only,” says Colonel Napier, “can be kept under discipline ; soldiers Avithout money become robbers.” ^ 6. The different mode of AAmrfare Avhich the use of gun- poAAxler has introduced. “ There is as much difference,” says the same authority, “ betAA^een the modern and the ancient sol- dier, as betAveen the sportsman and the butcher. The ancient Avarrior, fighting Avith the SAvord and reaping his harvest of death Avhen the enemy Avas in flight, became habituated to the act of slaying. The modern soldier seldom uses his bayonet, sees not his peculiar victim fall, and exults not over mangled limbs as proofs of personal proAvess.” §131. The rules Avhich lie at the basis of a humane system of Avar are, — Fundamcn- . . tai rules of 1. Ifiat peace IS the normal state of Christian na- tions, to AAdiich they are bound to seek to return from the temporary and exceptional interruptions of Avar. 2. That redress of injuries and not conquest or plunder is the laAvful motiAm in Avar; and that no rule of morality or jus- tice can be sacrificed in the mode of Avarfare. 3. That Avar is Avaged betAveen governments by persons Avhom they authorize, and is not Avaged against the passive inhabitants of a country. 4. That the smallest amount of injury, consistent Avith self- defense and the sad necessity of Avar, is to be inflicted. And, finally, 1 Peninsular War, iii,, 377 (Amer. eel. of 1842.) § 133. AND REDllESS OF INJURIES, ETC. 219 5. That the duties implied in the improved usages of war, so far as the}’ are not of positive obligation, are reciprocal, like very many rules of intercourse between states, so as not to be binding on one belligerent, as long as they are violated by the other. This leads ns to retaliation in war. § 132. That retaliation in war is sometimes admissible all agi’ee : thus if one belligerent treats prisoners of war harshly, the other may do the same ; or if one squeezes the ex- penses of war out of an invaded territory, the other may fol- low in his steps. Tt thus becomes a measure of self-protection, and secures the gi’eatest amount of humanit}^ from unfeeling military officers. But there is a limit to the rule. If one gen- eral kills in cold blood some hundreds of prisoners Avho embar- rass his motions, his antagonist may not be justified in stain- ing himself by similar crime, nor may he break his word or oath because the other had done so before. The limits of such retaliation it may be hard to lay down. In the case of Captain Asgill, a prisoner draAvn in order to retaliate for the killing of Captain Huddy, Washington had military right on his side. Asgill, however, AA’as finally set free. Yet any act of cruelty to the innocent, any act, especially, by Avhich non-combatants are made to feel the stress of Avar, is what braA'e men shrink from, although they may feel obliged to threaten it. (Comp. § 118, and the instructions for the government of our armies, §§ 27, 28.) §133. The use of poisoned weapons, the poisoning of springs, the employment of hired assassins, have long been condemned, as opposed to the idea of Avar, which is an open honorable AA’ay of seeking redress.^ Such practices characterize savage Avar- 1 Fov the Iiistoryof the rules of war, compare Mr. AVard’s 7/ fstory, chapters ix,, XV., ami elsewhere ; also an excellent article in the Oxford Essays for 18.56, by Mountagne Bernard, Esq., which has been of great use to the present writer, and from which the passages appearing as quotations in the next pages are taken. See also General flalleck’s Int. Law and Laivs of War, chap, xvi., which did not appear in time to be of serTice to the author of the present work in the first edition. 220 RIGHTS OF SELF-DEFENSE § 133. fare. Grotiiis (iii., 4, § 17) is decided in condemning the prac- tice of poisoninjj springs, bnt thiidis that it is risfht r.articulav ^ ^ ^ ^ . i , • • niiasof w.ar. to coiTiipt Water SO that it cannot be used, whidi IS 1 . As to un- lawful woap- 110 woi’se than to tiim the channel of a stream in a way.s of in- direction '.vliere the enemy cnnnot get at it. He says juring the , ion i i i i enemy's per- aiso (§ 18), that Avliilst hired assassins must never be used, above all Avhen they violate express or implied confidence, an enemy may undertake to kill another in a pri- vate and concealed way. This he supports as usual by testi- monies from Greek and Roman writers. Modern times would use another language. Bynkerslioek, in 1737, falls beloiv the standard of Grotius, and alloivs of fraud to any extent in war. “ Ego omiieni cloluin permitto, sola perfidia excepta, non quod contra liostem non quodlibet liceat, sed quod, fide data, qua- teiiiis data est, hostis esse desinat” (“Qiiaest. J. P.,” i. 1), — opinions which it gives us pain to cite from such a writer. The Greeks, Romans, and some other states of antiquity, pro- fessed to abhor these methods of fraud in carrying on war.^ The Emperor Tiberius, when an offer was made him to put Arminiiis out of the way by poison, rejected it, although he committed many worse crimes. “Non fraude,” Tacitus re- ports him as saying (“ Aniiah,” ' ii. 88), “ iieqiie occiiltis, sed palaiii et armatiiin populuin Roniaiium hostes suos ulcisci.” “Wherein,” adds the historian, “he puts himself on a level with the military commanders of old, who had disallowed the use of poison against king Pyrrhus.” The spirit of chivalry was still more opposed to fraud and secret stratagem. Ene- mies often gave notice of an intention to make an attack at a certain time, and the true knight rejected every advantage, save that which his skill and prowess in knightly warfare af- forded him. llie laws of war are loose in "regard to the instruments of 2. Allowable des^fb used against an enemy. Formerly chain-shot niwiem*"' I’ed-liot sliot wei’e objected to, but they do not seem to be now. “ Now invention racks itself to ^ Comp. Dioni'.s. Hiil., Antiq., iii., 8, oi/5’ e/c tov epavepou iiridevTo ijixlv, is h Koivhs d|io7 TOV iroXe/xou v6/iOS, aW' inrh okStoum. § 133. AND REDRESS OF INJURIES, ETC. 221 produce the biggest gnii, the deadliest projectile, the most frightful engine of wholesale slaughter, and the shalloAvs of Kertch and Cronstadt are planted thick with infernal machines. It is p'ossible to go too fast and too far in this direction.” i What is liere quoted from an English essay written a few years since is more true of sea warfare than of land. As Heff- ter remarks (§ 119), w’ar on that element is the more harsh and destructive. “ Its maxims, owing to a want of the proper equipoise between naval powers, have been far from reaching the same level of humanity on which land-warfare stands. It is still half a war of plunder.” As for war in general, Kliiber (§ 244) lays it down that the customs of w'ar (“ Kriegsman- ier ”) condemn not only poisoned weapons, poisoning of wells and of utensils, attempts to spread the plague among the enemy, but also the use of chain-shot and bar-shot (bonlets d bras') shooting bits of iron, brass, nails, etc. (tirer d la mi- traille). The loading of muskets with two balls, with jagged balls, or with balls mixed with glass or lime, he also holds, somewhat too broadly, to be forbidden. Special treaties have prohibited as between the parties the use of chain, bar, and hot shot, as well as of pitch rings {cercles poisses). An infer- nal machine invented about the year 1585, which was a kind of fire-ship, was disapproved of by some, but went out of use because it did not do its work well. On the whole, it may be said that weapons whose efficiency consists simply in inflicting a bad wound, and instruments of wholesale slaughter which cannot be foreseen or avoided by flight, are against the customs of most kinds of warfare ; but that naval warfare too much, and sieges, of necessity, make use of summary and wholesale means of death.^ Naval war- fare is the storming of one floating fortress by another, but its law's need not be altogether assimilated to the storming of for- tified places on the land. 1 Jlonntague Bernard, u. s., p. 127. 2 Since this was fir>t written, torpedoes have been used for coast and river de- fense by the Prussians in the Franco-Prnssiau war, and by the Russians in the recent war with Turkey. For the convention regulating the size of hand-grenades that may be used on the field of battle, see § 142. 222 EIGHTS OF SELF-DEFENSE § 134. Hitherto the practice of using barbarians in the wars of Christian nations with one another, has not been Kind of troops em- absolutely Condemned by the law of nations. The ployed. , French used the American Indians against the Eng- lish in America, and the Turcos, a force made up of Algerines, Kabyles, and Negroes, in Ital}^ ; the English employed savages against their revolted colonies, in spite of the rebukes of Lord Chatham ; and the Russians brought Circassians with them into Hungary in the war following 1848. But nothing is clearer than that troops who are accustomed to an inhuman mode of warfare, and belong to a savage race, cannot be trusted to wage war according to the spirit of humanity, and ought not to be employed. Breach of faith between enemies has always been strongly 3. rrpach of Condemned, and that vindication of it is worthless itatlons'to''^ Avhich maintains that, Avithout an express or tacit crime. promise to our enemy, Ave are not bound to keep faith Avith him. But no rule of Avar forbids a commander to cir- culate false information, and to use means for deceiving his enemy Avith regard to his movements. If he abstains from them, he must do so by the force of his OAvn Christian con- science. To lead the officers, counsellors, or troops of an enemy to treachery by biibes, or to seduce his subjects to betray their country, are temptations to commit a plain crime, Avhich no hostile relation Avill justify.^ Yet to accept of the services of a traitor is alloAvable.^ § 134. A combatant is any person directly engaged in carrying on Avar, or concerned in the belligerent government, or present Avith its armies and assisting them ; although those Avho are present for purposes of humanity and religion — as surgeons, nurses, and chaplains — are usually classed among non-com- 1 A qualification is here necessary, that when a nation has been conquered and is under le, and to lay the subject before the German Confederation or the proposed Congress. 1 Comp. Bynker.-.h., Quess!., J. P., i., 4. The twenty-four hours’ rule grew up in modern Europe, and is purely arbitrary. The rule that the prize must be car- ried infra prtesidia, was a Roman one : “ cujus juris non alia ratio est quam quod tunc omnis rei persequendoe et recuperandae spes decollavcrit.” Bynkersh., u. s. 250 EIGHTS OF SELF-DEFENSE § 143. capes from the captor, or is retahen, or the owner ransoms her, his property is thereby revested. Bat if neitlier of these events happens, the questioa as to cliange of title is open to dispute, and many arbitrary lines have been diawn, partly from policy, to prevent too easy disposition of the property of neutrals, and partly from equity, to extend tlieyws postlhninii in favor of the owner.” ^ Thus there is no settled view or principle as to the time when a title from capture begins. Perhaps no definite rule can be laid down any more than in answering the question when occupation ends in ownership, which the laws of different states will determine differently. The state’s title begins in the fact of seizure according to the rights of war — that is, “when the battle is over, and the spes recuperandi is gone.” (Phillimore, 3, 460.) But the title can be contested in certain circumstances by neutral gov- ernments, as on the ground that capture was made in their waters ; or by private subjects of neutral governments, as in the various cases of seizure of neutral goods and ships ; or by subjects of the enemy, as where licenses to ti’ade were not re- spected by the captor. If, now, a neutral buys the prize im- mediately after capture, he buys it subject to the claims of injured parties, and has his remedy in the captor’s courts, provided the latter conveys that for which he had no good title. If the owner ransoms her, he extinguishes the captor’s title, of whatever kind it be, good or bad. The laws of the state determine the steps which the captor, as the state’s agent, must take in regard to the property, and especially at what time he is allowed to have an entire or partial interest in the things taken. It is the first duty of the captor, says IMr. Wild- man (ii., 176), to bring in his prize for adjudication, but “if this is impossible, his next duty is to destroy the enemy’s property : if it be doubtful whether it be the enemy’s prop- erty, and impossible to bring it in, no such obligation arises, and the safe and proper course is to dismiss.” Of course, if this doctrine, based on English decisions, be true, destruction 1 Kent, i., 101, Lect. v. § 148. AND EEDRESS OF INJURIES, ETC. 251 of neutral ships or property by mistake must be made good by the cruiser's government.^ In the Revolutionary War, and in the War of 1812, our cruisers burned such British vessels taken by them, as it was not convenient to send into port. The Confederate ships in the late war followed the same rule in respect to our vessels. Such has been the authorized usage for vessels acting under a commission from the British government. The French, while the Berlin and Milan decrees were in force, burnt a number of neutral American vessels having on board merchandise of British origin. Probably the custom, at least in regard to hostile ships captured, is an ancient one. According to English decisions, the destruction of neutral vessels taken as prizes, can be justified only by the most cogent reasons of public service ; and if such a vessel is burnt wan- tonly, or under a plea of necessity, the captor or his govern- ment is responsible. If a vessel sailing under a valid license is destroyed in the belief that the license is invalid, restitution must be made with costs and damages. (Case of the Actceon, Dodson’s Admiralty Reports, ii., 48.) In the case of the William, as the validity of the license was doubtful enough to justify the capture, restitution Avas decreed Avithout costs and damages (Ibid., ii., 55). In the case of the Felicity the captain concealed his license, and even denied having one until the vessel was on fire, the captor Avas freed from liability. (Ibid., ii., 381.) The Avhole practice is a barbarous one, and ought to disap- pear from the history of nations. And yet the rules of 1856 do net saA'e neutral property on enemies’ vessels from the risk of being burnt, although they are not liable to capture. Tavo German vessels, in the late Franco-German war, being taken and burnt the same day, and a prize-court at Bordeaux having decided that the burning of the ships Avith the neutral goods AA'as authorized, the neutrals interested in the cargo appealed to the Council of State, for compensation for their 1 The doctrine is unsafe for neutrals, where the cruiser pertains to a belligerent de facto, attempting to become a nation, not to a lawful and acknowledged power 252 EIGHTS OF SELF-DEFENSE § 148. property destroyed, and the decision went against them on the following grounds : 1. That though Article III. of the declar- ation of 1856 gives to a neutral owner a right to the restitu- tion of his goods or the payment of the price, it does not follow that he can claim indemnity on account of acts of injury caused to him by valid capture, or by acts of war con- nected with such capture. 2. The destruction was due to the fact that the commander of the capturing vessel had so many prisoners on board that he could spare none of his crew for the purpose of taking these prizes into a French port. 3. Hence the burning was a continuation of the fact of war, the fitness of which the owners of the cargo could not be allowed to dis- cuss. To have decided otherwise would have been, remarks M. Calvo, to subordinate the rights of belligerents to those of neutrals, where, in an extreme case, they were in conflict. See Calvo, ii., 670-672. § 149- By modern usage, a complete title to a prize taken at sea, is given to the captor only by the sentence of a com- uticg'ivcn petent court. By a competent court is intended one bid court, Py tPe of the state, has jurisdiction in matters pertaining to prize, no matter what other jurisdic- tion it may have, or not have. Such courts in this country, are the District and Circuit Courts of the United States with appeal up through the Circuit to the Supreme Court of the Union ; such were, in France, after 1659, the Council of Prizes, with appeal to the Council of State, and thence to the Royal Council of Finance ; and such have been, in the British do- minions, the Vice-admiralty and Admiralty courts, from whom appeal lies to a committee of members of the Privy Council, known as the Judicial Committee. And, in general, the court must be one acting under the authority of the captor's sove- reign, and holding its session at home or within the territory of an allv. A consul or ambassador residing abroad has no ju- risdiction. it is held, in prize cases; and when the Fiench gov- ernment, in 1796, allowed their consuls and vice-consuls in neutral ports to decide such questions. Sir W. Scott declared § 150. AND REDRESS OF INJURIES, ETC. 253 it a thing unheard of. (Manning, p. 381 ; Heiiter, § 138.) Neutrality is too delicate a thing to allow either the courts or territory of neutrals to be used in such cases. ^ It is not nec- essary, however, that the prize itself should be conveyed into the ports of the captor’s sovereign or of his ally ; but if a neu- tral consents, it may be taken into a convenient port of that description. Such consent the neutral may give or Avithhold, as he judges best, and it is not generally withheld ; but per- haps the strictest notion of what neutrality requires, demands of them to close their ports to prizes, unless some urgent cause, as a storm, or the vessel’s condition, should render temporary sojourn there necessary. It will be the captor’s right, if the neuti'al opens his ports, to carry there prizes taken from the neutral’s own subjects as well as those belonging to any other national it v.^ § 150. It may, for various reasons, be inconvenient to send a prize into a port, and a captor so situated will be apt, if ^ •1.1^1 Ransom of permitted, to let the prize go free again for less than captured its worth. For these reasons, and in accordance with the practice of ransom formerly so common on the land, it be- gan to be, about the end of the seventeenth century, the cus- tom to allow captors to liberate a captured vessel on an engage- ment to pay a certain ransom, which may be looked at in the light of a repurchase. The receipt for the ransom is of the nature of a passport or safe conduct, and contains a permission, good against all ci'uisers of the belligerent or his ally, to pur- sue a certain voyage. Only in cases of necessity can the route and time laid down be departed from without violating the contract. The contract insures against molestation from other 1 Sir W. Scott knew of no instance where neutral courts exercised .such juris- diction, but Mr. Manning produces one from a treaty made between Denmark and Genoa, in 1789 (p. 381). 2 It may be urged against the present mode of constituting prize-courts that they are one-sided and partial. Hence the proposition has been made to establish mixed or neutral prize-courts, wliich should sit during a war. But as long as nations differ as much as they do now in regard to important points of sea-law, this is hardly praciicable. 254 EIGHTS OF SELF-DEFKNSK § 150. cruisers, but uot against other kinds of hazard, and the ran- som would still be binding, if nothing were said to the con- trary, in case the vessel perished by the perils of the seas. As it is difficult to enforce the payment of ransom during war, the custom has prevailed more or less to deliver secure the ovei’ to tile caotor liostages, who might be detained ransom. c, until tlie liquidation of the contract, and whose ex- penses were provided for in the ransom-bill. The hostage being only collateral security, his death or flight cannot re- lease from the contract. If the master or owners refuse to fulfill their stipulation, the hostage’s remedy lies in an appeal to the courts of the captor’s or owners’ country. If a ransomed vessel is captured out of its course and con- demned, the ransom is deducted from the proceeds of the vessel, and only the remainder goes to the second captor. If the captor’s vessel is recaptured, with the ransom contract, or Avitli the hostages, or with both on board, there is held to be a complete end to all claim for payment. ^ If, on the other hand, the captor’s vessel is taken after putting the ransom- bill and hostage in a place of safety, the contract continues unimpaired : nay, it is held so to continue, if the captor’s vessel is taken, and the securities for the payment of ransom are concealed so as not to come into the actual possession of the second captor. And, again, when a captor’s vessel was captui’ed Avith the hostage and the ransom-bill on board, in Avhich there was an agreement that payment should be binding notAvith standing a possible second capture, the English courts decided that the first captor, being an alien, could not by their laAVS bring a suit for the recovery of a right acquired in ac- tual Avar. But in this case the hostage might sue, or in case of his death, the captor after the end of the Avar.^ The master of a vessel being an agent for the owners, they are bound by his act, when not fraudulent nor contrary to 1 So WilJman, ii., 273, after Valin. But why, if the first captor had transmit- ted the bill, retaining the hostage who is only a collateral security, should not his claim be still good 1 2 Wildman, ii., 275. § 150. AXI) liKDUESS OF INJURIES, ETC. 255 usage. But if the ransom should exceed the value of ship and cargo, it is held that the o'wners by surrendering these may be free from obligation. A ransom contract is not invalid under the law of nations, although made in war, since it contemplates a state of war which it seeks to mitigate. Nevertheless, no nation is bound to allow its citizens to give or receive ransom-bills. By a French ordinance of 1756, privateers were forbidden to ran- som a vessel until they had sent three prizes into port. The power of granting ransom has been taken away by acts of Par- liament from English cruisers, excej)t in extreme cases to be allowed by the courts of admiralty. The reason alleged for this legislation is, that captors might abuse their power of ransoming vessels and injure neutral trade. To this it ma}' be added that ransom is forbidden by Swe- den in a regulation of 1788, by Denmark in one of 1810, by Holland in an ordinance of 1781, by Russia apparently since 1787, and by Spain, so far as neutral vessels are concerned, since 1782. In France no neutral ship can be ransomed, nor can an enemy’s vessel be ransomed without a certain authoriza- tion and certain formalities. Our law permits ransom both of hostile and of neutral vessels, on the ground that in both cases it is a mere remission of the rights of the captors to Avhat they take in war, so that every prohibition of it must ex- pressly depend on the regulations of each particular country. Hautefeuille opposes ransom of neutral vessels on the fol- lowing grounds : 1. The seizure of neutral property ought to be pronounced lawful by a decision of a prize-court ; hence neuti’als Avould be injured by demanding a ransom from them before such a decision. To Avhich Gessner’s reply is per- fectly coiiAdncing, that “• the neutral consents to it, and no one takes from him the right of demanding that his vessel shall be seized and tried. Moreover, the ransom does not deprive him of the eventual benefit of a favorable sentence. The proceedings follow their course none the less, and if they end in clearing tlie A'essel, the captoi’, of course, must pay the ransom back. The neutral, tlien, has m this case the advan- 256 RIGHTS OF SELF-DEFENSE § 150. tage of avoiding seizure and of freelj^ continuing his voyage ’.vitli liis cargo.” 2. Hautefenille’s other objection is, that by granting ransom to neutral vessels, a nation and its cruisers are accessories, so to speak, to their carrying contraband to the other belligerent. But the belligerent Avill be likely to pro- vide for his interests in directions given to his vessels of war ; and, besides, the ransom does not permit the neutral vessel, if it has contraband on board, to take it to a blockaded poi-t. It still has another gauntlet to run.^ “Most German and French publicists agree in pronouncing ransoms of neutral property permitted by international laAV.” Gessner, u. s. § 151. If, according to the received right of war a thing taken from Kecapture. eueiuy becoiucs the property of the captor, it the ori.”inai Height sceiu that, whcu retaken, it ought to become owner. property of the second captor. But since the captor’s right comes to him from the state, the state may de- cide how far he shall be rewarded, if at all, for his risks and labor in retaking what had belonged to a fellow-subject. It seemed inequitable that the original owner should wholly lose his right to what had been recently his own, while the recap- tor, an inhabitant of the same, or of a friendly country, at the end of two acts of violence, came into possession of the same property. And yet, policy as well as justice should hold ont a jjrospect of reward for a recapture, which the cruiser would otherwise be apt to shrink from, and which brought with it its hazards. We are led, then, to the questions, when, and how far the rights of the original owner revert to him, and to the right of salvage or the premium granted for recapture. And as the return of property to its first owner appears in the shape of the Roman doctrine of postliminy, it is neces- sary to explain briefly what the Roman postliminy was, and how it differs from that which is known to modern interna- tional law'. 1 See Pistoye et Duvcrdy, i., 287, Hautefeuille, iv., 262-264, Gessner, 338-343, Phillimorc, iii , 532. §151. AND REDRESS OF INJURIES, ETC. 257 By ancient yite, under the guaranty of Austria, Great Britain, Prus- sia, and Russia. Luxemburg AAms to cease to be fortified, and the fortress Avas to be demolished under the charge of the Grand Duke, the King of Holland, so that it should be an open ^ The ncutriilit}’ of these Sardinian districts, rvliich grow out of a great Eu- ropean .arrangement, onglit not to cease, in consequence of their cession to France. Comp. Appendi.x ii., nnder 1859. 2 Sometimes there is a tetnporary nentralit}', nnder which the two belligerents exempt a certain territory from tlie operations, of war, such as the exemption of the pontifical territory in 1859. Comp, Calvo, ii., 289. § 164. BELLIGERENTS AND NEUTRALS. 279 citj', the fortifications not to be rebuilt, nor a military estab- lishinent maintained there. Also the Grand Duchy of Lim- burg Avas to form an integral part of the Kingdom of Holland, and a special l elation between certain territories pertaining to that Grand Duchy and Luxemburg Avere to cease. (See “N. li. Gen.,” XA’iii., 445.) The position of the neutral glA’es rise to rights, AA’hicli may be defended against attempted aggressions of a bel- Armeaneu- ligerent by armed forces, and several neutrals may unite for this purpose. This is called an armed neutrality, of Avhich the tAA'o leagues of the Baltic poAvers in 1780 and 1800 furnish the most noted instances. But it may be doubted Avhether the term neutrality can be applied to these leagues, Avhich not only armed themselves for self-defense, but laid doAvn principles of public laAV against the knOAVii maxims of one of the belligerents, Avhich they Avere ready to make good by force. (§§ 189, 209.) §164. In most wars nations are bound to be neutral, as Laving no vocation to judge in the disputes of other states, and obligations as being already friends to both parties. The obli- ueutrais. gations mnst be fixed and knoAvii, in order to prevent the neu- tral from slipping into a position to Avhich Avar between his friends, if he do not keep his ground, mnst force him. “The enemies of our friends,” says Bynkershoek (“ Qusest. J. P.,” i., 9), “ are to be considered in a tAvofold light, as our friends and our friends’ enemies. If you consider them as friends, Ave may rightfully aid and counsel them, and may supply them Avith auxiliary troops, arms, and other things Avhich AA^ar has need of. But as far as they are our friends’ enemies, it is not pevmilted to us to do this, for thus Ave should prefer one to the other in AA'ar, Avhich equality in friendship — a thing to be e-specially aimed at — forbids. It is better to keep on friendly terms Avith both than to favor one of the tAvo in Avar, and thus tacitly renounce the other’s friendship.” The principles from Avhich Ave start seem to be clear enough : at 280 OF THE RELATIONS BETWEEN § 164. the same time, for the I’easoii that neutrality is a thing of de- grees, and that the practice of nations has been shifting, it is a little dilhcult to lay down with precision the law of nations in regard to it, as it is at present understood. That law seems to he tending towards strict neutrality. A just war being undertaken to defend rights, each sove- reiccnty must, as we have seen, decide for itself Ncutv.als ® . , . ,. lluls^. be im- wlietlier its war be lust and expedient. It follows partial. ^ that powers not parties to tlie Avar must treat both belligerents alike as friends. Hence no jirivilege can be granted or Avithhehl from one and not equally from the other. Thus, if transit, or the entrance into harbors of ships of Avar, for the purpose of refitting or of procuring military sup- plies, or the admission of captured prizes and .their cargoes, is allowed to the one belligerent, the other may claim it also. Otlierwise a state aids one of its friends in acts of Auolence against another, AAdiich is unjust, or aids a friend in fighting against another party, Avliich is to be an ally and not a neu- tral. § 165. But the rule of impartiality is not enough. The notion of neutrality, to say nothing of the convenience of the tiaiityTs^not iieutral aiid his liability to be draivii into the Avar, demands something more. It is not an amicable act Avheii I supply two of my friends Avith- the means of doing iiijuiy, provided I do as much for one as for the other. Such a relation is not that of a medins inter hastes, but of an im- partial enemy, of ix,jack on hath sides. Moreover, it is impar- tiiilit}' in form only Avhen I give to two parties rights within my territories, Avhich may be important for the one and use- less to the other. The United States in a Avar betAveen Great Britain and Russia might alloAV both parties to enlist troops Avithin its borders, but Avhat Avould such a privilege be Avorth to Russia ? And, indeed, almost every privilege concedetl by neutrals Avould be apt to enure more to the benefit of one than of the other of tAvo hostile nations. A rule of greater fairness Avould be to alloAV nothing to the belligerents Avhich § 1C6. BELLIGERENTS AND NEUTRALS. 281 either of them Avould object to as being adverse to his in- terests ; but this rule would be subjective, fluctuating, and probably impracticable. A rule, again, expressive of strict neutrality, would prohibit the neutral from rendering any ser- vice specially pertaining to war, or allowing his territory to be used for any military purpose by either belligerent. This, if we add the qualification, “ unless engagements previous to the war concede some special assistance to one of the parties, which assistance is not of importance enough to convert a neutral into an ally,” would nearly express what is the pres- ent law and usage of nations. § 166. But it is necessary to descend to particulars. We shall consider, first, what duties neutrality does not preclude ; sec- ondly, what it binds the neutral not to do or allow; and then shall take up by themselves certain actions which are open to doubt. 1 . The neutral ought to discharge the duties of humanity to both belligerents, for these are still due even to xcutnis an enemy, and are due to persons of no nationality. Humane to It is clear that a ship of war in distress may during war run into a neutrtd port, unless there is some special rea- son to prevent it. So asylum is allowed within neutral terri- tory :ind waters to a defeated or fugitive belligerent force, and the victor- nmst stop his pursuit at the borders. The condi- tions, however, according to which refugees shall be received, are not absolutely settletl. In the case of ti’oops fleeing across the borders, justice requires that they shall be protected, not as bodies of soldiers with arms in their hands, but as individ- ual subjects of a friendly state : they are, we believe, in prac- tice generally disarmed, and supported in their place of shelter at the expense of their sovereign.^ The other course would be unfriendly, as protected soldiers might issue forth from a 1 Tlie rules of ilie Conference of Brussels of 1871 rcfiuirc that the neutral “ les interuera, iiutant que possible, loin clii thcVitre ilc hi guerre.” They may bo kept under guard in camps, or shut within fortresses. (Art. liv.) See § 142. 282 OF THE RELATIONS BETWEEN § 166, friend's territory all ready for battle ; and would also tend to convert the neutral soil into a theatre of war. In the case of ships of war running into neuti'al Avaters in order to escape from an enemy, to demand that they shall either be disarmed, like fugitive troops, or return to the high seas, seems to be a harsh measure, and unauthorized by the usages of nations. An instance of such harshness occurred in a recent Avar betAA’een SchlesAvig-IIolstein and Denmark. A small Avar steamer, be- longing to the former party, ran for safety, in July, 1850, into the Avaters of Liibeck, Avhich was on friendly terms Avith both belligerents. The senate of Liibeck had given orders that vessels of Avar of eithc^ appearing Avithin its jurisdic- tion, must lay doAAm their arms, or depart beyond cannon-shot from the coast. The lieutenant commanding the steamer chose the latter alternative. In justification of its conduct, Avhich was impartial, Liibeck only pleaded that the neutral, in re- gard to the rules of hospitality, must consult its own interests, and that small states, in order to have their character for neu- trality respected, must “ observe in everything Avhich relates to Avar itself the stricter rules of neutrality.” They Avould receive, they said, vessels of the belligerent parties only when escaping the perils of the seas, and then only Avhilst such perils lasted. Tlie analogy from the practice of disarming fugitive troops does not hold here. If the ship is driven out at once, it goes Avhere a superior force is Avaiting for it ; if it remains disarmed, the expense and inconvenience are great.^ §167. The same spirit of humanity, as Avell as respect for a jiay admit friendly poAver, imposes on neutrals the duty of open- wtrofttio ll^sir ports to armed vessels of both belligerents, Leiiigerents. pm’poses having no direct relation to the Avar, and equally likely to exist in time of peace. Cruisers may ^ Von Kalteiiboni, antlioi’ of tha Yorlnufcr dcs Hugo Gi'ofius, ])nl)lislied at Hambni't;, in ISoO, a brochure, ciUitled Kricfisschiffe auf r,entmlem Gehi(tc,ixovn Avliich these facts arc drawn ; and whicli, wliile occupied with an examination of tltis jtarticnlar case, contains an excellent summary of the rights and duties of neutrals on their own territories. § 168. BELLIGERENTS AND NEUTRALS. 283 sail into neutral harbors for any of the piu’poses for which merchant vessels of eitlier party frequent the same places, ex- cept that merchant vessels are suffered to take military stores on board, which is forbidden generally, and ouglit to be for- bidden, to ships of war.^ 2. The general practice of nations, dictated perhaps by comity, has hitherto permitted cruisers to bring their prizes into neutral ports. We have already seen that this is not ob- ligatory on neutrals, and sound policy demands that it be pro- hibited.^ §168. The British Government in our late war prohibited, by an order of June 1, 1861, the bringing of prizes by vessels of war and privateers of both parties into the Avaters of the British kingdom and its colonies. France, by a declaration of June 10, 1861, made the same prohibition, excepting that such A’essels Avith prizes are alloAved to remain tAventy four hours in her ports, and to. remain, in case of a forced suspen- sion of a cruise (veldclie foreae), as long as the necessity lasts. Treaties sometimes require this. M. Hautefeuille, in his “ Quelques Questions du Droit In- ternat. Maritime,” 1861, discusses the question Avhether these prohibitions are compatible Avith previous treaties Avith the United States. In our treaty of 1794 Avith Great Britain, Ar- ' tide XXV., it is said that “ it shall be laAvful for the ships of AA'ar and privateers belonging to the said parties respectively to carry Avhithersoever they please [that is, into any of each other’s harbors] the ships and goods taken from their ene- mies.” It is also said that “ no shelter or refuge shall be given to such as have made a prize upon the subjects or citizens of either party.” M. Hautefeuille remarks on this that “Article XXVIll. says positively tliat the ten first articles shall be per- manent, but that the others shall be revised in the space of 1 AVhetlior belligerent cruisers ought to bo permitted to lake supplies of coal in neutral ports will be considered below, § 195. 2 That is, captures in war ought to be attended with so many inconveniences as to check the spirit of plunder. 284 OF THE DELATIONS BETWEEN § 168. tAvelre years ; and as tliey have not been revised, they are thus abolished. But,” he adds, “ they have not been replaced by any other stipulation, and it is a principle of jurisprudence ac- knowledged by the nations and b}^ England herself, as ,we shall prove in speaking of contraband, that in this case their ancient treaties ought to regulate the relations of two contract- ing parties.” He therefore argues that tlie arrangements of tlie treaty admitting our vessels with their prizes and refusing shelter to captors of our merchant ships are inconsistent with the order of June 10, “■ unless established usage is violated and the ancient treaties arc considered as absolutely without val- ue.” But he fails in his foundation of fact. He misread the treaty, which does not say that the articles after Article X. shall be revised within twelve years, but that they are “ lim- ited in their duration to twelve years,” excepting Article XH., which expired by its own limitation two years after the end of the war then existing betAveen Great Britain and her en- emies, and which, it is agreed, shall be revised if possible, and, if not, shall expire altogether. (Comp. Art. XH., and the additional article at the end of the treaty.) The order of June 10, then, was perfectly legal and just, as far as this treaty was concerned. But had France a right to exclude public or private ves- sels Avith their prizes ? The ConAmntion of 1800, in Article XXIV., has the expression, “When the ships of Avar of the two contracting parties, or those belonging to their citizens, Avliich are armed in Avar, shall be admitted to enter Avith their prizes the ports of eitlier of the tAvo parties,” implying that such a privilege of admission is not absolute, but may be Avithheld. It is added, hoAA'eAmr, at the end of this ai'ticle, that “ its stipulations shall not extend bejmnd the priAuleges of the most faAmred nation.” The question then is, as M. Haute- feuille remarks, Avhether any nation is favored so far as to bring its prizes into French ports. He ansAvers that the dec- laration of Paris of 1856, abolishing prlvateeiing, has virtu- ally abolished that favor for all nations except Spain, and that he knoAvs of no treaty of this nature Avith Spain. But it may § 109. BELLIGERENTS AND NEUTRALS. 285 reasonably be objected to his argument that the declaration of Paris has no reference to ships of war bringing in prizes into the ports of parties to the declaration. If tliat "svas allowed by treaty before, it is not abrogated by the declaration. If, tlien, any nation luid such favors in French ports in 1861, the French Government violated their treaty with us by the dec- laration of June 10, 1861. ' INI. Hautefeuille goes on to say that if the other nations besides Great Britain and France had treaties allowing this O right to the United States in 1861, they were bound to treat both the vessels of the United States and those of the Confed- erates with the most perfect impartiality, “ because both [the United States and the Confederates] were parties to these acts.” We had supposed the teachings of international law to be that revolting communities are without rights, except those of humanity, until received into the fellowship of na- tions by recognition. The Confederate States broke away from the body-politic of the Union, renouncing their obliga- tions, and therefore their privileges. How could old treaties apply to them any longer ? If this doctrine were true, they had a right to the advantages of all treaties, and ought to need no recognition. §169. On tlie other hand, it is a violation of neutrality for a neu- tral state to lend money, or supply troops (with the exception already mentioned), or open harbors for tmismay hostile enterprises ; or to allow the presence of any individual or vessel pertaining to a belligeient stale Avithin his territory, AAdien believed to be stationed there for the pur- pose of carrying out a hostile undertaking ; or to suffer its subjects to prepare, or to aid in preparing or augmenting, any hostile expedition against a friendly power, as for instance to build, arm, or man ships of war Avith such a pttrpose in aucav, or to build them Avitli this intent so far as to make them ready for an armament to be put on board upon the high seas or in some neutral port. Nor can he alloAv his courts to be employed in deciding upon the validity of captures made by belligerent vessels. 286 OF THE RELATIONS BETWEEN § 169. Henc?, although a ship may he sold iu a neutral count) y to a belligeient, as an article cf commerce, the augmentation of a cruiser's force in such a country rvill taint all its captures brought into such a country's ports during its cruise. Nor, agiiiii, can the neiiti-al during a war acquire by purchase or otherwise any conquest made by either of the parties, Avithout deserting his unbiased neutral position. If a neutral poAA^er violates its obligations in these respects, or winks at hostile proceedings, such conduct may afford ground for damages, and even for Avar. If it is careless in not preventing damage to a friend from the unejertakings of its subjects, it is liable for the loss thence resulting. (§ 174.) Nor can it plead the inefficiency of its laws, or AA^ant of suffi- cient hiAV, for all mitioiis are bound to enfoi’ce the law of na- tions Avithin their OAAur lluiits. (§§ 29, 228.) It ought to be said, hoAveA’er, that the base arts of merchants and sliip-buikleis Avill often prev'ent governments from obtaining clue evidence of the existence of such hostile designs ; and that the dis- tinction betAveen Avhat is merely contraband of A\"ar — as a ship of AAair made for sale, if that be a fair instance — and that Avliich is a hostile expedition, is sometimes so nice that the present law of nations, and municipal law enforcing it, must alloAV many Avrongs done to neutriils to slip tln-ough their fingers. Might not something be gained, if, dui'ing Avais between friendly states, builders and armers of vessels Avere required by neutr.d gOAmrnments to give security to double the value that these Avere not intended to be used in hostile expe- ditions.^ (Comp. § 193, note.) §170. The case of the Alahama, Avhich is likely to become one of cn,-eof the 1^''^ cnuses celihres of international laAV, deserves some Aiuhamn. ]iotice here. The leading probabilities and facts of the case are these : — 1 For the conduct of our government in jircveuling liostilo expediiions, and in making leparatiuns for wrongs committed Iw then', when they liad had tlicir origin in our ports, see a pamphlet entitled English Neulralitg, by G. P. Lowry, New York, 1863. § 170. BELLIGERENTS AND NEUTRALS. 287 1st. The vessel, called at first No. 290, and now known as the Alabama, was evidently intended to be a ship of war, and Avas confessedly built for a foreign government. 2d. An active part Avas taken in the construction and su- peiintendence of the A'cssel by a man Avho had a little before taken the Oreto into the West Indian seas, — a vessel built to be a gunboat, and professedly destined for Palermo, — and Avlio AA'as shown to have come from the Confederate States into the INIersey in a steamer carrying their flag. 3d. One person deposed on oath that this man told him that the vessel Avas going out to the government of the Confederate States to fight for them. 4th. The testimony touching the destination of the Amssel Avas suck that the counsel of the ambassador of the United States gave the AAritten opinion that a. stronger case of in- fringement of the Foreign Enlistment Act could Avith diffi- culty be made out. “It is little better,” he says, “than a dead letter, if this A’essel can escape.” He thinks that in such a case the Federal Government AA'ould have serious grounds for remonstrance. It ought to be said, hoAvever, on the other hand, that eminent laAV3’ers, consulted bj" the British GoA^ern- ment, gave the opinion that they could see in the building of a ship, adapted for AAavlike purposes and delivered in an Eng- lish port to a purchaser knoAvn to be an agent of a foreign belligerent poAver, no offense against the Foreign Enlistment Act on the part of the builder, unless the builder made him- self a party to the equipping of a A^essel for AA'arlike purposes. The Alabama appears to luiA’e been equippDcd at the Azores, and not in England at all. 5th. Evidence Avas in the hands of the government as earlA' as July 23, at the latest, Avhich, in the language of a candid British Avriter (Professor Bernard, “ Bi itish Neutrality,” p. 385), “might haAm satisfied a jury” that the A'essel Avas in- tended for the Confederate service. The Solicitor of the United States informed the Secretary of the Board of Cus- toms at London on the 28th that she AA'ould sail the next dayx Orders Avere sent to detain her on the 31st, but she left port that day, too soon to have them executed. 288 OF THE RELATIONS BETWEEN § 170. Gtli. The vessel was carvied to Terceira, was joined by a barque from tlie Thames, containing most of the guns and stores intended for her, and by another from the IMersey, con- veying, besides stores, a number of men, among whom Avas the future captain. The preparations Avere completed here at a secluded part of the coast, the Confederate flag Avas run up, and the A^essel Avent on her Avay. 7. No orders Avere given to seize her, as having violated English laAv, or as having been built in violation of the letter or spirit of the hiAv of nations. She Avas regarded like any other vessel built for a belligerent poAver. This case is important, as not only giving rise to ques- tions concerning English hiAv, but as involving the principle Avhether a neutral is or is not bound under the laAV of nations to protect its friend against hostile expeditions commenced Avithin the territory, and Avhether the AAmnt of efficient laAA'S AAais a fair excuse. Shall the completion of such an expedition in foreign Avaters — shall an obvious trick, Avhich is alAA^ays possible — be a bar against all claims for damages, as many English statesmen and ]aAA"3’ers think, or did the criminal intent, begun at Liverpool, and made apparent by evidence there, furnish the United States, as iNIr. Adams claimed, Avith cause of complaint of injuries Avhich the British Government Avas bound to make good ? Is municipal laAV, or are the gen- eral obligations of states to each other, to determine the ques- tion ? (See Professor Bernard, u. s., chapters xiii.-xv., the present AATiter’s article on the Alabama question, “ Noav Eng- lander,” July, 18G9, ami a number of articles by Mr. George Bemis in Massachusetts iieAA'spapers.) § 171. It Avas formerly thought that the neutral might allow the transit of belligerent troops through his territory, Cases dniibt- .■ i • i i • r ' fiiiordis- tlie passage of ships engaged in llie service ot Avar Passage of tlirougli liis Avatei's, and the preparation of hostile tioops. expeditions in his harbors, if he granted the same to both sides. All noAV admit that the neutral ought to refuse §172. BELLIGERENTS AND NEUTRALS. 289 any of these privileges, and must be the sole judge in the case, although Vattel inclines to think that innocent transit in extreme cases may even be carried through with force.^ JMany publicists still A’iew the allowance of transit as reconcil- able with the notion of neutrality, and a number of treaties have expressly granted it to certain states. Heffter, who held this view in his first edition, has in the third (§ 147) justly taken the opposite side. His reasons for his later opinion against allowing transit are that for the most part an actual gain accrues from it to one partj^ and that it will rarely hap- pen that both can avail themselves of it during a war, with equal advantage. (Comp. § 165, supra.') §172. The practice of neutrals to furnish troops to belligerents, or to allow them to enlist troops on neutral ground, was ^ TliG ncu^i'&l formerly common, and allowed.^ Tims, six thousand fumi^^hing Scotchmen joined the army of Gustavus Adolphus. The Swiss, like the Arcadians of old, for centuries furnished troops to many foreign sovereigns, not -without detriment to the national character, as Zwingli and other patriots have felt ; and still in recent times they have hired out soldiers to some of the Italian states. Several old treaties gave France the preference over other nations in levying Swiss troops, and that of 1521 allowed her to enlist a number not exceeding 1,600, who could not be recalled by the authorities at home so long as France was at war. A treaty of this kind Avas made as late as 1803. Heffter thinks, howeA’er, that since the neutral- ity of 1815 they Avould not be justified in agreeing to furnish troops to one European porr^er against another after the out- break of a AA-ar. INlany treaties made in the last three cen- turies have renounced the poAver thus to furnish troops, or have put an end to foreign enlistment, Avhile a number of an opposite import have permitted the one or the other. By the treaty of IMiinster in 1648, — Ave quote the Avords of Mr. Man- 1 V.ittel, ill., 7, §§ 119-1.35. * See Manning, Book III., pp. 166-181, of ed. 1. 19 290 OF THE RELATIONS BETWEEN § 172. ning (p. 174), “it ■sAas agreed that none of the contracting parties should afford to the enemies of tlie otlier arms, money, soldiers, ])rovisions, harbor, or passage, the riglit being, lio\v- e\’er reserved to the individual states of the empire to serve as mercenaries according to the constitutions of the empire.” This custom has now a lingering existence : it is forbidden in some countries by laAV, and is justly regarded as a violation of neutrality. § 178. International law does not require of the neutral sovereign that he should keep the citizen or subject within the aiieutmTs Same sti’ict lines of neutrality Avhich he is bound to subjects do. q'pg piuvato person, if the laAvs of his own state or some special treaty do not forbid, can lend money to the enemy of a state at peace Avith his OAvn countiy for purposes of Avar, or can enter into its service as a soldier, Avithout involving the government of his country in guilt. The English courts, hoAvever, and our oavu deny that any right of action can arise out of such a loan, on the ground that it is contraiy to the hiAV of nations. (Phillimore, iii., § 151 ; case of Kennett v. Chambers, 14 HoAvard’s U. S. Rep., 38.) The practice of individuals belonging to a neutral na- tion, serving in foreign Avars ^ aa’us formerly Avidely diffused and admitted throughout Europe, and is not of easy pre- Amntion, if prohibited ; for at the Avorst the individual may renounce his country, putting himself also beyond its pro- tection. It is only Avdren a great pressure into the armies of one of the bellisrerents is on foot that the neutral can be O called on to interfere. In the ease of private armed vessels, the usage is diffei'cnt. It is noAV regarded as a breach of neu- trality to alloAv a subject to accept letters of marque and equip armed vessels, in order to jn’ey on the commerce of a bellig- 1 Sntiiplimp.s nonli'uls li.Tvc even pent military officov.s to countries ^clicre war was wafrinu', iliat ihcy niiutt learn ilie art of war. To .send an experienced gen- eral on Knell a ini.ssinn, or to esempt liim from penalties for accepting service aln oad, would come ulgli to giving' assistance to one of the parties. (Hautefeuille, i., 2.AS, ed. 2.) §174. BELLIGERENTS AND NEUTRALS. 291 erent friend ; altliough it 'would be impossible, as on the land, to prevent individuals from going abroad for this purpose. (Comp. § 129.) §174. Neuti'als Lave a right, 1. To insist that their teiTitory shall be inviolate and untouched by the operations of j;igi,tsof war, and their rights of sovereignty uninvaded. And if violations of their riglits are committed, they have a right to punish the offender on account of them, or to demand sat- isfaction from his government. They are in a manner bound to do this, because otherwise their neutrality is of no avail, and one of the belligerents enjo3's the privilege of impunity. Ill 1837, the Caroline^ a steamboat employed by Canadian insurgents in carrying passengers and munitions of oa.oeoftiio war from our borders to the opposite shore, was cap- tured and destroyed within our waters, — tlie leader of the ex- pedition against it having expected to find it within British territory. In the correspondence between the governments to which this act gave rise, Mr. Webster said that such a viola- tion of neutrality could be justified only by a “necessity of self-defense, instant, overwhelming, having no choice of means, and no moment of deliberation.” Lord Ashburton rightly contended that this was just such a case of necessity, but re- gretted that some explanation and apology for the occurrence was not immediately made. And so the matter ended. In 1863, the Chesapeake, a merchant steamer bound for Portland, Ale., was seized by passengers, who turned (^aaeof the out to be Confederates, and was carried to a port c/ifMpMfe. of Nova Scotia. A United States vessel found her there de- serted by the pirates, and in the possession of some of her first crew, who gave her up. Two British subjects, hired by the pirates, being on board, were made prisoners ; and another of the pirates was seized from another vessel and put in irons. The vessel being taken to Halifax, Mr. Seward offered to apol- ogize and make amends, but he connected with it the extra- 1 For the case of the Virginius, where self-defense on the high sea was one of the prominent points to be alleged on behalf of Spain, see § 214. 292 OF THE RELATIONS BETWEEN § 174. clition of the men as pirates and the delivery of the vessel to the OAvnei's. The proposition of IMr. Seward was not ac- cepted, on the ground that the acts done in British territory, being a gross violation of neutrality, authorized the demand to deliver up the vessel formally to the authorities, and to set free the men upon British soil with an apology and disclaimer on the part of the United States. The vessel and cargo were finally restored. The transaction on our part was a clear vi- olation of neutrality. Equally illegal and more highhanded was the cutting out of the Confederate steamer Florida under the guns of a Brazilian corvette. For this the minister of the United States apolo- gized, and a fiigate was sent to the port to salute the Brazil- ian flag. For the first case comp. Dana on Wheaton, note 207. Earlier cases of violation of neutral territory that deserve mention, belong to our war with Great Britain in 1812-1815. The United States frigate Essex, lying dismantled in the har- bor of Valparaiso, was attacked and compelled to surrender by the British ship Phoebe. Tlie Levant in the same war was chased into Porto Praya and captured by British vessels, as also the General Armstrong was destroyed in the harbor of Fayal by the British. In this latter case the United States made demands on Portugal for indemnification; but Louis Napoleon, to whom the case was submitted for liis arbitration, decided that it was not due, because the vessel did not seek for protection, but resisted force by force. That is, an offense was committed against Portugal by the British force, but the vessel took its own defense into its own hands, and the neu- tral was not bound to interfere. In another case where some French vessels had fled to the bay of Lagos, and were seized by the English, indemnification was demanded, but Great Britain refused itd No cruiser is authorized to chase a vessel within or across neutral waters, and all captures so made, or made in viola- tion of the neutral laws for maintaining neutrality, must be 1 For th« American case.'}, comp. Dana’s Wheaton, note 208. §176. BELLIGERENTS AND NEUTRALS. 293 regarded as illegal ■with respect to tlie neutral, although not illegal Avith respect to the enemy.^ If such a prize is brought into any of the neutral’s ports, he is authorized to seize and re- store it. If it be carried into a port of another country, he has a right to demand its restoration, and the prize court of the belligerent is bound to respect the objection. If the neutral fails to exercise his rights in these respects, the government of the vessel which has been thus captured may complain or even retaliate. The Avrong-doing vessel may afterAvards have en- trance into the Avaters of the injured neutral refused to it, since all admission of Avar-vessels into neutral Avaters, unless required by treaty, depends on comity alone. Or its govern- ment, if the neutral prefer, or is forced to take that mode of redress, may be required to give satisfaction in regard to the injury. § 2. Neutrals can claim from the belligerents, during war, all that respect for their flag, for their representatives, for their jiroperty, and the property of their citizens or subjects, Avhen employed in the laAvful operations of Avar, to which they have a right during peace. To pi-eclude the ambassadors of the neutral fiom egress and ingi-ess into enemy’s territory is un- friendly, although the enemy’s envoys to the neutral may' be seized except on neutral soil or ships. (§ 97.) The property of neutrals has sometimes been AATongfully seized for govern- ment purposes in eases Avhere necessity Avas pleaded for so do- ing, but not Avithout the prospect held out of compensation. And this, AAdiich Louis XIV. is said to have pronounced to be a right, has been extended to their seamen. The right of pre- emption in Avar will be considered in another place. And the restrictions on neutral trade will be the subject of a separate chapter. 176. Every nation is bound to pass laAvs whereby the territory and other rights of neuti’als shall be secured, and has a right 1 Comp. tVildman, ii., 147. 294 OF THE EELATIONS BETWEEN § 176. to demand security for itself in the same manner. Nor is Municipal there any deficiency of such laws in Christendom, for^^ng'neu- TIiiis Great Britain, by an act passed in 1819, for- tiuhty. bade British subjects to enter the service of foreign states under penalty of fine and imprisonment, although such an act of individuals, as we have seen, is not a violation of neutrality. The United States by various acts, as by those passed in 1794, 1818, and 1838, have endeavored to prevent injuries to neutral and friendly powers, as well as violations of our own rights, whether by citizens or foreigners. Thus, (1.) It is made a misdemeanor for a citizen to accept or exercise within our territory a commission from a foreign power in a war against a state at peace Avitli us. (2.) It is unlaAvful for any one to enlist, or induce another person Avithin our bor- ders to enlist, or eno'aGfe him to cro abroad to enlist in foreicen service against a fi-iendly pawer ; or to institute Avithin our territory any military expedition by land or sea, against any such poAver ; or to augment the force of any vessel having such hostile intent ; and the vessels engaged in such an en- terprise by sea are subject to forfeiture. (3.) No belligerent vessels are alloAA'ed to jarovide themselves Avith military stores, or with anything not equally applicable to commerce and to Avar. When vessels of the Uvo belligerents are in our har- bors together, they are forbidden to depart Avithin tAventy- four hours of one another. And the President is empoAvered to use force to send out of the Avaters of the United States such vessels as ought not to remain Avithin onr limits, as Avell as to compel the observance of our neutrality laAvs in general.^ In short our Iuaa^s are not bad. May no officials ever make a purposely ineffectual display of maintaining these laAA'S, and connive at their violation in secret. ^ Kent, i., 122-12.3, Lect. vi., whom I have used in tliis summary of our neu- trality laws. For captures made by ships that have committed a breacli of our neutraliiy laws, comp. § 174, supra. Illejjal augmentation of force affects cap- tures made on the ci uise for which the augmentation took place, but not after- ward. (7 Wheaton Eep , .648.) § 177. BELLIGERENTS AND NEUTRALS. 295 § 177. The act of 59 Geo. III., chap. 69, commonly called the Foreign Enlistment Act, was framed after our Neu- British For- trality Act, of 1817, but differed from it in two re- spects : First, in being expressed in more stringent terms ; and again, in omitting two provisions. One of these is, that in our act bonds are required, in the case of armed vessels sailing out of our ports which belong wholly or in part to our citizens, in double the amount of the vessel and its cargo, including the armament, to the intent that the said ves- sel shall not be employed by such owners to cruise against the subjects or property of any power Avith which the United States are at peace. The other gives to collectors of customs poAver to detain vessels built for purposes of Avar, of Avhich the cargo shall consist principally of arms and munitions of Avar, Avhenever it is probable to them that such vessels are in- tended for cruising against the subjects or property of friendly states. Such detention is to continue until the President make a decision thereon, or until the OAvnei’s shall give bonds, ac- cording to the requirements of the preceding section. For a comparison of the tAvo acts, see Mr. Bemis on “ American Neutrality, its Honorable Past, its Expedient Future,” Boston, 1866 ; and Mr. Mountague Bernard’s “ British Neutrality,” 403-406. Several reasons seemed to the British Administration in 1867, to make it important to revise the act just mentioned. Commissioners Avere appointed to consider the “ character, Avorking, and effect of the neutrality laws of the realm,” Avho made a report in 1868. On the basis of their report, and embodying its principal suggestions, a project of a laAv Avas submitted to Parliament, and a laAv Avas passed August 9, 1870, by Avhich the earlier act was repealed. This laAV is en- titled “ An Act to regulate the conduct of her Majesty’s sub- jects during the existence of hostilities betAveen foreign states Avith Avhich her Majesty is at peace.” It may be cited, also, for all purposes, as “The Foreign Enlistment Act, 1870.” 296 OF THE KELATIONS BETWEEN § 177. The parts of this act most Avorthy of notice are (1.) Those relating to illegal shiphuilcling and illegal expeditions. (§§ 8- 13.) The folloAving acts, — building, agreeing to build, or caus- ing to be built, equipping, dispatching, issuing any commission for any ship, with intent or knoAvledge or reasonable cause to believe tl}at the same shall or will be employed in the military or naA^al service of any state at war with any friendly state, subject the offender to either or both fine or imprisonment, the latter Avitli or Avithout bard labor, at the court’s discretion, and not exceeding two years. The ship itself shall be for- feited, except AAdien the contract to do any of these acts Avas made before the commencement of Avar between such states. But tlie person concerned may save himself from penalty, if he make knoAvn to the Secretary of State Avhat he is doing, and all required particulars touching his contract ; and if also he give such security and take or permit to be taken such other measures as the Secretary shall prescribe, for insuring that such ship shall not be removed Avithout license until the end of such Avar. The burden shall lie on the builder of a ship, built for or delivered to such a foreign state or to its agent, or paid for by either of them, and employed for the purposes of Avar, of 'proving that he did not knoAv that such Avas the destination of the A^essel. (§ 9.) § 10 forbids, under the same penalties, augmenting the Avar- like force of any such ship ; and § 11 forbids naval and mili- tary expeditions against friendly states. All ships and their equipments, Avith all instruments of Avar forming a part of such an expedition, shall be forfeited. 7\ny vessels captured in violation of the neutrality of the realm Avithin the soA^ereign’s territorial jurisdiction, or by any ship built, etc., contrary to this act, if brought into British dominions by the captor or his agent, or by any one coming into possession of it, with knoAvledge that it was prize of Avar so captured, may be seized, detained, and, on due proof, re- stored to the original OAvner or his agent, on application of the original OAvner or his agent, or of any person authorized in that § 177. BELLIGEEENTS AND NEUTKALS. 297 behalf by the government of the foreign state to wbicb the owner belongs. (§ 14.) (2.) From the sections relating to legal procedure (16-29) we select the following particulars : — All measures for the condemnation and forfeiture of a ship, its equipment, arms, etc., shall require the sanction of the Sec- retary of State, or such “ chief executive authority ” as the act mentions, and shall take place in the Court of Admiralty, . and nowhere else. (§ 19.) The words “ chief executive au- thority ” denote the Lord-Lieirtenant of Ireland, or his chief secretary, the governor in any British possession, the lieuten- ant-governors of the Channel islands, and of the Isle of Man. (§ 26.) If the secretary or any of these chief executive officers is satisfied that there is reasonable and probable cause for be- lieving that a ship has been or is being built, commissioned, etc., in violation of any of the provisions of the act (§§ 8- 12), he is empowered to issue a wari'ant stating his belief, upon which warrant certain “ local authorities ” may seize, search, and detam such ship, until it has been condemned or released. Then, on application of the owner or his agent, the Court of Admiralty is to try the case, and if the applicant fails to establish the Innocence of the transaction in regard to the ship, it shall be detained, until released by the secretary or other executive officer above specified. The court, where no proceedings are pending, may release the detained vessel, on the OAvner giving security to the satisfaction of either that the ship shall not be employed contrary to the act. The Sec- retary of State or chief executive authority may do the same under the same security, or even Avithout security, if he think fit so to act. If, on trial, it appears to the court that no good ground for detention existed, the court has poAver to declare that the OAvner is to be indemnified by the payment of costs and damages in respect of the detention ; and Avhen the Sec- retary of State by his order releases a ship, the court has poAver to make a like order for the indemnity of the OAvner. (§ 23.) 298 OF THE KELATIONS BETWEEN § 177. Certain “local authorities,” namely, any officer of customs in the United Kingdom, any similar functionary or public offi- cer in any British possession, any commissioned officer on full pay in tlie military or the naval service, subject respecti\ ely to anj' special or general instructions of certain superiors, are empowered to seize or detain any ship liable to be seized or detained under the act. (§ 21.) They are required to do this when they find reason to believe that a sliip has been or is being built, etc., contrary to the act, and forthwith to make the detention known to the secretary, or chief executive au- thority. And the provisions of § 23 in regard to the powers of the secretary, etc., and of the Court of Admiraltjq are here repeated. (§ 24.) The Secretary of State, or the chief executive authority, may, by warrant, empower any person to enter any dock-yard or other place, and to inquire as to the destination of any ship which may appear to him intended to be employed in violation of the act, and he may search the same. (§ 25.) No local authority shall be responsible, civilly or criminally, in respect to the seizure or detention of any ship in pursuance of the act. (§ 28.) Nothing in the act subjects to forfeiture any commissioned ship of any foreign state, or gives to any British court any jurisdiction over such ship which it would not have had with- out the passage of the act. (§ 32.) And in the phrase “ for- eign state,” the act, in an “ interpretation clause,” declares itself to include “ any foreign prince, colony, province, or part of any province or people, or any person or persons exercising, or assuming to exercise, the powers of government in or over any foreign country, colony, province, or part of any province or people.” § 178. During the late Crimean war it came to light that certain Case of the British consuls were persuading persons within our baMa^or^ bouncls to go out of the United States in order to 1856. enlist in that service, and that the minister at Wash- ington was aiding therein. It could not be complained of, if § 179. BELLIGEEENTS AND NEUTKALS. 299 tlie United States gOYernment showed displeasure at sncli pro- ceedings, demanded his removal, and even ceased to hold communication with him as the agent of the British govern- ment. In wdiat, now, did his offense consist, — in a breach of our law only or in a violation of international law ? In an- swer it may be said, that if the earlier usage is to decide, there was no direct breach of international law ; if the more modern, there was a breach. But supposing this to be doubtful, in breaking our laws of neutrality, which have the peculiar char- acter of supporting the laws of nations, and that too when he was the representative of another sovereignty, he attacked the sovereignty of the nation, and in this way came in conflict with law international, which aims to secure the sovereignty of all the nations who acknowledge it. And even if our law could have been evaded by inducing men to go abroad for an- other object, and there persuading them to enlist in a war against one of our friends, there would still have remained ground of complaint against the agents in such a scheme, as disturbers of our relations with a friendly power. ^ § 179. A foreign power, as we have seen (§§ 40, 42), may assist a state to repress a rebellion, and may not assist re- 1 , , r-.i Relation of voiters themselves, but when these have fairly ere- neutrals to 1 . , . , tlie parties ated a new government, may enter into relations with in an inter- it, without unfriendliness towards the original state. Meanwhile, until the fact of a new state is decided by the issue of the struggle, the position of neutrals is a delicate one, and one to which little attention has been paid by winters on the law of nations. Theoretically we say, 1 Yet it seems that a consul may raise money in a neutral state, and transport to his own state such of his countrymen as are recalled to do military service. This was done by the German consuls in this country in 1870, who sent large numbers of their countrymen home to serve in the landwehr without l)eing consid- ered as violating our neutrality, probably because they were not American citi- zens. Calvo (ii., 394) remarks on this that the consuls entered into no recruiting forbidden by international law, while the neutral ves.scls wliich carried these men compromised the neutrality of their flag and exposed themselves to capture. — T. S. 300 OF THE RELATIONS BETWEEN § 179. (1.) The relation, if the foreign power stands aloof, is not that of neutrality, between states, but of neuti'ality between parties om of loliich is a state, and the other trying to become a state. (2.) Tlie foreign power, therefore, cannot plead the laws of neutrality for treating both parties alike, for the one is an acknowledged state, the other is not. Thus whatever favors it has granted to the cruisers of the friendly state it is not bound to grant to the revolters, or rather, it is bound not to grant to them the same privileges, for by so doing it admits their right to prey on the commerce of its friend, — which only states can do. (3.) In a certain sense the foreign power must regard the revolters as belligerents, entitled to all those rights which hu- manity demands, as that of asylum for troops or vessels in dis- tress, or fleeing from a superior power, — the same sorts of rights which would be granted to political exiles. The vessels of such revolters cannot be regarded as piratical, for their mo- tive is to establish a new state, while that of pirates is plunder. A pirate never ends his war with mankind. They fight for peace. (Compare § 145.) § 180- (4.) The subject of the recognition of a territory in revolt against the established government, as being a bellig- S^arevoit^d ereiit power, has lately assumed considerable political anen'ig^-^ importance. England led the way in thus recogniz- ing the Confederate States by the Queen’s proclama- tion of neutrality, published May 13, 1861 ; France followed on the 10th of June ; and, in the course of the summer, a number of other states made similar declarations. The proc- lamation of neutrality was not at first imputed on this side of the water to hostility, as it was afterAvard. The British orders of June, 1861, Avhich prohibited armed vessels of either party from carrying prizes into British ports — orders Avhich grew out of the proclamation, and implied the recognition of a state o.f Avar — Avere not at first unwelcome to our Secretary of § 180. BELLIGERENTS AND NEUTRALS. 301 State ; he said that they “ would probably prove a deathblow to southern privateering.” But a time soon came when the proclamation was considered to be hasty, intended for our hurt, the great source of hope to the Confederates. (a.) In considering the general subject, we remark, Jirst, that while nations may take sides against a revolutionary movement in another state, if invited so to do by the govern- ment (comp. § 42), they have a right to remain neutral, and ill almost all modern movements of this kind nations have judged it wisest and best to take a neutral attitude. Only when great cruelty, on the part of the established government, rouses the indignation of mankind, have they thought best to interfere. This neutrality was our position, notwithstanding our declared sympathy, during the long and slow struggle of Spain with its American colonies. (d.) A proclamation of neutrality, or by whatever name a notification of a war be called, declares that a state of war ex- ists between two certain parties ; announces, therefore, that, in the exercise of the rights of war, they may interfere with neu- tral commerce within certain limits ; warns subjects or citizens against unlawful assistance of either party in the war ; and, perhaps, makes known what will be permitted or forbidden to the belligerents within the waters or other territory of the power making the proclamation. If, after this, a subject of such a power should be captured in a war-vessel of one of the belligerents, he could not be punished as a pirate by the law of the captor’s state without giving cause for complaint of in- jury and redress, much less could he, by the law of nations. And to this it may be added that, by such a proclamation, a nation takes from itself the power of complaining of the effects of war between the parties in question on its vessels and goods, because by the act it declares war to exist. (c.) Such a proclamation, of course, has no look towards recognition of a territory in revolt as a new state, nor does it pretend to judge of the right and wrong of the struggle. It is simpljr a declaration of a fact. (d.) But there may be a difiiculty in ascertaining when the 302 OF THE KELATIONS BETWEEN § 180. fact of war begins, and this difficulty is the greater in cases of insurrection or revolt, where many of the antecedents and pre- monitory tokens of war are wanting, where an insurrection may be of little account and easily suppressed, or war may burst out full-blown, it may be, at once. Our government has more than once professed to govern its action by the fol- lowing criteria expressed in Mr. Monroe’s words relating to the Spanish South American revolts : “ As soon as the move- ment assumes such a steady and consistent form as to make the success of the provinces probable, the rights to which they were entitled by the law of nations, as equal parties to a civil war, have been extended to them.” But this rule breaks down in several places. The probability is a creature of the mind, something merely subjective, and ought not to enter into a definition of what a nation ought to do. Again, the success does not depend on steadiness and consistency of form only, but on relative strength of the parties. If you make probability of success the criterion of right in the case, you have to weigh other circumstances before being able to judge which is most probable, success or defeat. Would you, if you conceded belligerent rights, withdraw the concession whenever success ceased to be probable ? And, still further, such prov- inces in revolt are not entitled by the law of nations, to rights as equal parties to a civil war. They have properly no rights, and the concession of belligerency is not made on their ac- count, but on account of considerations of policy on the part of the state itself which declai’es them such, or on grounds of humanity. (c.) Precedents are to be drawn chiefly from modern times. The revolt of the Low Countries was hardly an analogous case, for they were states having their especial charters, not connected with Spain, except so far as the King of Spain was their suzerain. In our Revolutionary War precedent was not all on one side. Great Britain stoutly declared Paul Jones to be a pirate, because he Avas a British subject, under commission from revolting colonies, and Denmark agreed to this. In the South American revolutions the concessions of belligerent § 180. BELLIGERENTS AND NEUTRALS. 303 rights were given freely by neutrals, most freely by the United States ; and as for proclamations, our government went so far as to issue one in 1838 “ for the prevention of unlawful inter- ference in the civil war in Canada,” where no civil or military organization had been set up. The true time for issuing such a declaration, if it is best to issue it at all, is when a revolt has its organized government, prepared by law for war on either element, or on both, and when some act, involving the open intention and the fact of war, has been performed by one or both of the parties. Here are two facts, the one political, the other pertaining to the acts of a political body. The fact of war is either a declaration of war, or some other implying it, like a proclamation of blockade, or, it may be, actual armed contest. (/.) Was there, then, a state of war when the British pi’oc- lamation of neutrality was given to the world, or did the facts of the case justify the British Government in the supposition that such a state of war existed ? Here everything depends on facts, and on opinions derived from facts. We find opinions expressed by eminent men among ourselves iu the first half of May, 1861, that war had already begun, which some of them conceived of as beginning with the attack on Fort Sumter. AVe find a number of States seceding from the Union, whose territory made a continuous whole, which formed a constitu- tion, and chose public officers, a President among the rest. This President made a proclamation touching letters of marque and reprisal, and told his Congress that two vessels had been purchased for naval warfare. We find, next, two proclama- tions of the President of the United States, one of April 15, calling for a large force of the militia of the States, and an- other of April 19, announcing an intention to set on foot a blockade, after the proclamation of the Confederate President, inviting letters of mai’que and reprisal, had become known at AA^ashington, On the 6th of May the Southern Congress sanc- tioned the proclamation concerning letters of marque, recog- nized a state of war, and legislated on cruisers and capture. AA^e pass over many acts of violence, such as seizures of forts 304 OF THE RELATIONS BETWEEN § 180. and other public propert}^ Avithin the Confederate States. In- telligence of President Lincoln’s blockade reached London on the evening of May 2. Copies of it Avere there received be- tAveen the 5th of May and the 11th. On the 13th the Queen’s proclamation of neutrality AA^as issued. The President’s proclamation of blockade announced a measure AAdiich might liaA'e important international conse- quences. It Avas, in fact, a declaration of a state of Avar on the sea. “He deemed it advisable,” he says, “to set on foot a blockade, in pursuance of the laAVS of the United States and of the laAvs of nations.” And vessels exposing themselves to penalty for violating the blockade, Avould “ be captured and sent to the nearest convenient port for such proceeding against them and their cargoes as prize, as might be deemed advisa- ble.” SeA'eral neutral vessels Avere captured betAveen April 19 and July 13, on Avhich last day Congress sanctioned the pro- ceedings of the Government. The validity of the captures came before the Supreme Court, and the question Avhen the Avar began became a very important one. The court decided that the President had a right, /itre belli, to institute a block- ade of ports in the possession of the rebellious States, and that blockade Avas an act of Avar. It Avould seem, then, that if the British Government erred in thinking that the Avar began as early as Mr. Lincoln’s proc- lamation in question, they erred in company Avith our Supreme Court. (See the “Alabama Question” in the “Ncav Eng- lander” for July, 1869, Black’s Reports, ii., 635 et seq., Dana on Wheaton, 374-375, LaAvrence’s Wheaton, 2d ed., snpplem., p. 13, and Pomeroy’s “ Introd. to Constit. LaAA',” §§ 447-453.) § 181. (5.) What measures can the state at Avar Avith a part of its Right of a subjects take in regard to foreign trade Avith revolted t^tSwith ports ? To say that it cannot apply the rules of revoiters. blockude. Contraband, and search, because the ports are its own, is mere pettifogging. But can it close these ports by an act of the Government, as it once opened them ? § 181. BELLIGERENTS AND NEUTRALS. 305 At first view it seems hard to refuse this right to a nation, but the better opinion is that foreigners, by having certain avenues of trade open to them, have thereby acquired rights. (§ 28.) The nation at war within itself must overcome force by force, but this method of closing ports supersedes war by a stroke of the pen. It is the fact of obstruction in the ordinary channels of trade which foreign nations must respect. If the state in question cannot begin and continue this fact, it must suffer for its weakness. But international law does not make all these distinctions. The colonies of Spain, as yet unrecognized, were regarded by us as “belligerent nations^ having, so far as concerns us, the sovereign rights of war, and entitled to be respected in the ex- ercise of those rights ? ” And so England and France acted in the war of the secession. (7 Wheaton Rep., 337.) (6.) In the late war an experiment was made of supplement- ing the blockades at Charleston and Savannah by o Ri ht of sinking stone-ships in channels of entrance into the blocking up ports. At the instance of British merchants their voued'couu- Government made complaints against this, as being detrimental to the general and permanent interests of com- merce, to which our Secretary of State replied that the United States would regard it as a duty to remove the obstructions as soon as the Union should be restored. Had the United States a right to do this, or had neutrals acquired a right of access to those harbors subject only to the temporary hindrances of war ? As far as the sovereign’s right is concerned, it is clear that, for national preservation, meas- ures of force within the borders of a state are not subjects of complaint from foreigners, any more than blockade or visita- tion on suspicion of contraband upon the water. As far as the practice of nations is concerned, we have a good instance in the obstructions at Dunkirk, which were stipulated for in the Treaty of Utrecht (see Append, ii., under 1713), and insisted upon in all new treaties, until the French were released from their obligations by the peace of Paris in 1783. And, in the war of 1870 between France and Germany, the Prussians 20 306 OF THE RELATIONS BETWEEN § 18V blocked up, or filled with torpedoes, a large part of the har- bors of northern Germany. Section II. — Of the Rights and Liabilities of Neutral Trade. rights of neutral trade. § 182. Having considered the relations between belligerent and Importance iieuti’al States., we now proceed to inquire how war tLehtng™^ affects the commerce of neutral persons, or the rights and liabilities of neutral trade. This is a subject of greater practical importance than any other in inter- national law so far as it applies to intercourse by sea ; for if the rule restricting the freedom of neutral trade verges to the ex- treme of strictness, the evils of war are very much increased, and its non-intercourse is spread over a wider field. It is also a subject in which the jarring views of belligerents and of neutrals have hitherto prevented fixed principles on many points from being reached, so that neither have different na- tions agreed in their views, nor has the same nation at differ- ent times been consistent, nor have text-writers advocated the same doctrines. Yet the history of opinion and practice will lead us to the cheering conclusion that neutral rights on the sea have been by degrees gaining, and to the hope that here- after they will be still more under the protection of interna- tional law than at any time past. § 183. The nationality of individuals in war depends not on their origin or their naturalization, but upon their domicil, neutrals He is a neutral who is domiciled of free choice in a is neutral neutral country, and he an enemy who is domiciled property, , , j. tt m an enemy s country. Hence — 1. As domicil can be easily shaken off, a person in the prospect of war, or on its breaking out, may withdraw from the enemy’s to another country with the intention of staying § 183. BELLIGERENTS AND NEUTRALS. 307 tliei’e, and thus change his domicil. IE he should return to his native country, fewer circumstances would be required to make out intention than if he betook himself to a foreign territory. If against his will and by violence at the breaking out of war he was detained in the belligerent country, bis longer stay would be regarded as the forced residence of a stranger, and probably all disadvantageous legal consequences of his domicil there Avould cease. 2. If a county is conquered during a Avar, its national char- acter changes, although it may be restored again at peace, and so the nationality and liabilities of its inhabitants engaged in business change. 3. But a person having a house of commerce in the enemy’s countiy, although actually resident in a neutral country, is treated as an enemy so far forth as that part of his business is concerned, or is domiciled there quo ad hoc. On the other hand, a person having a house of commerce in a neutral coun- try and domiciled among the enemy, is not held to be a neu- tral. This is the doctrine of the English courts, adopted by the American. “ It is impossible,” says Dr. Wheaton (“ Ele- ments,” iv. 1, § 20), “in this not to see strong marks of the partiality toAvards the interests of captors, AAdiich is perhaps inseparable from a prize code, framed by judicial legislation in a belligerent country, and adopted to encourage its naval exertions.” ^ In general, property follows the character of its OAAUier. Thus neutral ships are ships owned by neutrals, that is by persons domiciled in a neutral country, and the same is true of goods. Hence in partnerships, if one OAvner is a neutral and in a neu- tral country and the other an enemy, only the property of the latter is liable to capture. But here Ave need to notice, — 1. That ships cannot easily transfer their nationality on a voyage, the act of so doing being presumptiA^e evidence of a fraudulent intention to screen them from the liabilities of their former nationality. 2. That when a ship sails under a hostile flag, she has, by whomsoever oAvned, a hostile character. 1 Compare Dana’s note 161 on Wlieaton for a criticism qualifying this remark. 308 OF THE EELATIONS BETWEEN § 183. 3. If a neutral’s ship sails under an enemy’s license to trade, she becomes hostile ; for why should she have the advantages of a close connection with the enemy without the disadvan- tages ? 4. If a neutral is the owner of soil in a hostile country, the product of such soil, exported by him and captured, is consid- ered hostile. This is on the principle that the owner of soil identifies himself, so far forth, with the interests of the coun- try where his estate lies.^ 5. In a revolted province waging regular war there are no loyal persons whose property is distinguished from that of the other inhabitants, but all are jurally enemies, unless detained by force within the borders when desirous to escape. The Supreme Court of the United States (Black’s Reports, ii., 635-639) decided that “ all persons residing within this [i. e., the Confederate] territory, Avhose property may be used to in- crease the revenues of the hostile power, are in this contest liable to be treated as enemies, though not foreigners.” Such a decision presupposes hostile territory and not hostile persons only ; and the territory could be hostile, only because the ex- isting supreme power Avas hostile to the United States. § 184. When a Avar arises one of three things must take place. General Either the neutral trade may go on as before, and toHawuty'^^ belligerents have no right Avhatever to injure or limit to capture. manner ; or the belligerents may, each of them, interdict any and all trade of neutrals Avith the other; or there are certain restrictions Avhicli may be imposed on neu- tral trade Avith justice, and certain other restrictions, Avhich must be pronounced unjust. 1. FeAV have contended that the trade of neutrals ought to be entirely unfettered, for a part of that trade may consist in supplying one foe Avith the means of injuring the other, and the siege or blockade of strong places Avould be nugatory, if neutrals could not be prevented from passing the lines with 1 Compare Wheaton, Elementt, iv., 1, §§ 17-22; Kent, i., 74, Lect. iv. § 184. BELLIGERENTS AND NEUTRALS. 309 provisions. Will it be said that such trade is impartial, — that it favors one party in a war no more than the other ? It would be bettei- to say that it is partial now to one side and now to the other, and that a series of assistances, rendered to parties in a struggle, although they might balance one an- other, — which would not generally be true in fact, — are un- just, because they only put off or render fruitless the effort to obtain redress, with which the war began. 2. On the other hand it will not be claimed that a belliger- ent may justly forbid neutrals to carry on every kind of trade with his enemy. I may have a right to distress my foe in order to bring him to a right mind and procure redress, but what right have I to distress my friend, except so far as he takes the part of my foe, and thus ceases to be my friend. Will it be said that all trade with one foe is a damage to the other, and may therefore be broken up? No doubt it is indi- rectly an injury, but indirect results of lawful business no more justify interference, than the advance of one nation in wealth and industry justifies others in endeavoring to cripple its resources. The neutral might with as much yrtstfce declare war, because the belligerent injured him by a fair operation of war, — by blockading the port of his foe for instance, — as a party to a war require that all trade should bend to his con- venience. And besides this the same humanity which allows internal trade to remain undisturbed during an invasion on the land, ought to leave the neutral’s commerce in some degree free to take its wonted course. 3. It is therefore allowed on all hands that some restrictions may be imposed on neutral trade, not such as a belligerent may select, but definite and of general application. The law of nations on this subject has been viewed as a kind of com- promise between neutral and belligerent right. Neutrals may legitimately carry on all sorts of trade, and belligerents may interrupt all. Hence nations have waived their rights and come to a certain middle ground, where some rights of both parties are saved and some thrown overboard. But this view seems to be objectionable, as making the actual neutral rights 310 OF THE RELATIONS BETWEEN § 184. to arise out of a state of things which is a jural impossibility. It cannot at the same time be true that neutrals should enjoy a particular trade, and belligerents obstruct that trade. There must be kmds of trade Avhich neutrals have a right to engage in, and herein belligerents are obliged to leave them undis- turbed. Otherwise the law of nations has no jural founda- tion. When we ask, however, what degree of restriction may be justly applied to neutral trade, we feel a Avant of a definite principle to guide us in the answer : Ave arc forced to say someAvhat v^aguely that the restrictions must be such as to keep neutral trade from directly assisting either party in the armed contest, and the smallest jjossible, consistent Avith the ends Avhich a just Avar involves. If these vieAvs are correct, it is Avrong for the neutral and for his subjects to engage in certain kinds of trade during a AA'ar, as truly as it is right for him to engage in certain others. If, for instance, he holds the same doctrine Ardth the belliger- ent in regard to the contraband of Avar, ho Avould Adolato the rights of one friend by supplying another Avith such articles. And yet Ave by no means affirm that laAV as now understood requires the neutral nation to prevent such trade on the part of individuals by vigilance and penalt}^ All that can be required of him is, especially Avhen his opinions on the justice of the Avar may vary greatly from those of his belligerent friend, that he should be iiassiAm, Avhile one friend tries to ob- tain Avhat he calls redress from another. The rules of Avar are to be put in force by the parties immediately concerned ; he is not under obligati^ju to add to his trouble and expense by a neAv commercial police. The restrictions on neutral trade knoAAm to international hiAV have related for the most part — 1. To the conveyance of hostile goods in neutral ships, and of neutral goods in hostile ships, or to the relation betAveen goods and vessels haAung different nationalities ; 2. To the conveyance of certain kinds of articles, having a special relation to Avar ; § 185. BELLIGEEENTS AND NEUTRALS. 311 3. To conveyance to certain places specially affected by the operations of AA^ar ; and sometimes — 4. To a trade closed before a Avar, but open during its con- tinuance. And in order to carry those restrictions into effect, a right of examination or A'isit must be exercised upon A^essel, goods, or both. § 185. We noAV proceed to the rules of international laAV, in regard to the liability to captures of ships and goods engaged in ordinary trade. of goods and 'J ^ Yessel as We may say, in general, that until very recent times tAvo rules have contended Avith one another, or not liable to capture. — the rule that tlte nationality of froferty on the sea determines its liability to capture^ or neutral property is safe on the sea and enemy’s property may be taken Avherever found, and the rule that the nationality of the vessel deter- mines the liability to capture^ or that the flag covers the cargo. By the first rule the neutral might safely put his goods into any A’essel Avhich offered itself, but could not convey the goods of his friend, being one of the belligerents, Avithout the risk of their being taken by the other. By the second, Avhen once the nationality of the ship Avas ascertained to be neutral, it Avent on its Avay Avith its goods in safety, but if it belonged to the enemy it exposed neutral goods on board, as Avell as other, to be taken. This latter rule consists of tAvo parts, that free ships make free goods, and that enemy’s ships make goods hostile, but the tAA'o are not necessarily, although part of the same principle, connected in practice; the former may be re- ceived Avithout the latter. It Avas a thing of secondary importance both for the neutral and for a belligerent, being a naA^al poAver, Iioav the rules should shape themselves in regard to the neutral’s goods in hostile bottoms. And his OAvn goods on board his OAvn vessel Avere freely admitted to be safe. Hence justice and a spirit of concession to the neutral united in favor of the rule that his 312 OF THE EELATIONS BETWEEN § 185 goods u'ere safe hy whatever vessel conveyed ; although not safe from sundry inconveniences growing out of search and the capture of the hostile conveyance. On the other hand, it was of great importance to the bellig- erent that the flag should not cover his enemy’s goods, or that free ships should not make goods free ; for thus, much of his power at sea to plunder or annoy his enemy would be taken away. To the neutral, the opposite rule, that free ships should make goods free, w'as of great importance ; for the carrying trade, a part of which war would in other ways throw into his hands, would thus be vastly augmented. But the belligerent’s interest on the whole prevailed. The nations, especially Great Britain, which had the greatest amount of commerce, liad also the greatest naval force, with Avhich they could protect themselves and plunder their foes, and therefore felt small need in war of hiding their goods in the holds of neutral ships. Thus, for a long time the prevailing rule was, that neutral goods are safe %mder any flag, and enemy' s goods unsafe under any flag. But at length neutral interests and the interests of peace preponderated ; and the parties to the treaty of Paris in 1856, Great Britain among the rest, adopted for themselves the rule which will be valid in all future wars, and is likely to be universal, that free ships are to make goods free. Likely to be universal, we say, unless a broader rule shall exempt all private property on the sea engaged in lawful trade from capture. §186. The ship of a neutral in which hostile goods are found, has been sometimes, particularly by French and Spanish S^^e.Sei's'^ ordinances, treated as if engaged in a guilty busi- hosme'"° ness, and visited with confiscation. But modern goods. practice, Avhilst it seized the enemy’s goods, has been in favor of paying freight to such neutral, that is, not fieight for the part of the voyage performed, but for the ivhole, capture of the goods being regarded as equivalent to delivery. But a neutral ship engaged in the enemy’s coasting trade cannot § 186. BELLIGERENTS AND NEUTRALS. 813 claim freiglit for hostile goods on board, because it has put itself into the position of a hostile vessel.^ On the other hand, when a hostile vessel is taken with the neutral’s property on board, the captor is entitled to freight, if the goods are carried to their port of des- neutral tination.2 But if “ the goods are not carried to their captured eu- original destination Avithin the intention of the con- tracting parties, no freight is due.” ® Hostile ships, with Avhatever goods on board, have been uni- formly regarded as prizes of Avar. But from the ^ ^ Coast-fisher- operations of war, one class of vessels, en^ao^ed in an ies of foes ^ ^ ° ° protected in eminently pacific employment, and of no great ac- war by some count in regard to national resources, has often been exempted ; Ave refer to vessels engaged in coast-fisheries. It appears that this exemption was alloAved centuries ago. Frois- sart is cited as saying in his Chronicle that “fishermen on the sea, Avhatever Avar there be in France and England, do no harm to one another : nay, rather, they are friends, and aid one another in case of need.” The liberty of the enemy's fish- ermen in Avar has been protected by many French ordinances, and the English observed a reciprocal indulgence ; but in 1798, during the French Revolution, the English government ordered its cruisers to seize French and Dutch fishermen and their smacks. Soon after, on remonstrance from the First Con- sul of France, the order Avas AAuthdraAvn, as far as the coast- fisheries in the strict sense Avere concerned ; and during the Avars of the empire, this peaceful and hardy class of laborers enjoyed exemption from capture. In the instructions given by the French Minister of Marine to naval officers in 1854, at the outbreak of the late Av^ar Avith Russia, Ave find the same rule folloAved. “ You must put no hindrance,” say the instruc- tions, “ in the Avay of coast-fishery even on the coasts of the enemy, but you Avill be on your guard that this favor, dictated 1 Comp. 'W’ildmaii, ii., 1.54. 2 The presumption is against the goods belonging in this case to the neutral, and he must prove his proiterty. 3 Id. ii, 162. 314 OF THE IlELATIONS BETWEEN § 186. by an interest of linmanity, draws with it no abuse prejudi- cial to military or maritime operations. If you are employed in the Avaters of the White Sea, you Avill alloAV to continue Avithout interruption (repression in case of abuse excepted) the exchange of fresh fish, provisions, utensils, and tackling, Avhich is carried on habitually betAveen the peasants of the Russian coasts of the province of Archangel and the fisher- men of the coast of Norwegian Finmark.” Such has been the practice of some of the principal Christian nations in pro- tecting the coast-fisheries of enemies, but as yet this usage cannot be called a part of international laAV.^ § 187. Having seen Avhat is the actual state of international laAV Justice of ill regard to neutral trade, Ave may now inquire spmhig^ ™ Avhether any definite rule of justice applicable to "rad^Jcon- ^‘^imii fi’acle can be laid doAvn. sidcred. Admitting for the present that capture of private pi-operty on the sea is justifiable, Ave ask Avhich of the tAVO principles is conformable to justice, that Avhich makes capture depend on the nationality of the conveyance, or that Avhich makes it depencl on the nationality of the property, Avhether ship or goods ? Here AA^e find — 1. That the conveyance or Amssel has been claimed to be territory, from AAdiich it Avould folloAV that, by interfering Avith neutral Amssels, the soA'ereignty of neutral nations Avas in- A'aded. But tlij* claim is false, as has already been shown (§ 58), and seems to liaA-e been devised just to cover this particular case, just to screen neutral ships. It is not a claim admitted in the laAv of nations : ships are liable to search on the ocean, and are under the jurisdiction of the nation in AAdiose ports they lie, to neither of AA'hich liabilities territory is exposed. Hoav can the sea itself be the territory of no one. 1 Comp. Ortolan, ii., 44, and Cairo ii., 23.5, 236. According to tlii.s author, the United States, in the war with ilexico, allowed the enemy’s fishermen to continue iheir'indnstry unmolested. He also states that Great Britain in the Crimean war did not show the .same indulgence towards fishermen Avith the French. § 187. BELLIGEEENTS AND NEUTRALS. 315 and a vehicle moving over it have the properties of terra firma ? A deserted ship is not claimed to be territory. A ship with a crew on board is nnder the protection and juris- diction of its country, where no other jurisdiction interferes ; that is, may have certain properties of territory, but not all properties. On the other hand, if ships were territory, it is clear that all the operations of war which affect nential ves- sels must be given up, blockade and the prevention of con- traband trade, as much as any other. 2. It seems to be in accordance Avith justice, that the na- tionality of the property should determine the rules of cap- ture. The only ground for taking certain things aAvay from private persons is, that tliey belong to the enemy, or that they aid the enemy’s operations in war. If they are taken because they belong to the enemy, vessels and goods ought to share the same fate ; they are equally private property, and differ in no essential respect. If they are exempt from capture be- cause they belong to neutrals, ships and goods ,on board any ship ought to be exempt. The rule thus is just, clear, and logical. 3. The neutral has certainly a right to take his friend’s goods on board his ship, and an equal right to put his own on board his friend’s ship ; nor Avill the fact that this friend has an enemy alter the case. Here the Avar-right of this enemy may subject him to great inconvenience, but neither his prop- erty nor his wages, in the shape of freight, ought to be taken from him. He is not guilty : why should he suffer other than those incidental evils which Avar brings with it, and a part of Avhich are inevitable ? 4. The establishment of the rule that free ships make goods free, is a gain for humanity and a Avaiver of justice. Hence AA^e hail it as inaugurating an era more favorable to peace. All this on the admission that private property may rightfully be taken on the ocean : if it cannot be, or it is expedient that it should not be, the same rule is a movement in the right di- rection.i ^ Mr. Reddie (in his Researches in Maritime International Law, i., p. 468, cited by 316 or THE RELATIONS BETWEEN § 188. § 188. In the course of tlie centuries during which international ^ law has been growing up, rules have been fluctuating practice in as it I’cspects the liabilities of neutral trade, and ncutrai couveiitional law has often run counter to prevailing rules. We propose here to give some brief historical illustrations of the former laAV and practice. First, the leading results of a historical examination seem to be sometbiiig like the following : — 1. That of old in mediaeval Europe there probably was a feeling that neutral trade might be made unlawful by either belligerent at any time, and that the permission of such trade was looked upon as a concession. This explains the custom of confiscating the neutral ship with hostile goods on board, which was more or less prevalent. 2. That from the time when commerce by sea began to be a great interest, neutrals could carry hostile goods on their ships with the liability of only such goods to capture, and generally without risk to the vessel, save of detention, search, and change of course ; and could put their own goods on hos- tile ships without danger of confiscation. 3. That treaties and ordinances during the seventeenth and eighteenth centuries often modified Avhat may be called the prevailing usage, and differed so much from one another, as to show that no pi'inciple ran through them. J\Iany of the treaties gave large freedom to neutral carriers, and some ordi- nances, especially in France and Spain, established a very Ortolan, for I have not access to the work), remarks that it is doubtful whether the neutral gains anything by tlie rule, “ free ships, free goods.” For the carry- ing trade of hostile property must come to an end, as soon as peace is made, and the neutral’s capital must then be turned into another channel. But if the bel- ligerent’s property be liable to seizure, the neutral will own more of the goods as well as of the ships, and his capital thus invested will stimulate all branches of home industr}^ and probably be longer able to retain the channel which was opened to it by the war. There is something in this, but most wars are too short to keep the powers at war from returning to their old usages of trade at the peace. Besides, tlie annoyance of the neutral is a very great evil, and his loss may be great. §189. BELLIGEKENTS AND NEUTRALS. 317 harsh rule towards them. In general, where by treaty free ships made goods free, this was coupled Avith the rule, that hostile ships made goods hostile, or the nationality of the ves- sel determined the character of the transaction. 4. That from the last quarter of the eighteenth century neutral nations endeavored to force on the Avorld the rule, “ free ships, free goods,” which Avas resisted, and prevented from entering into the laAv of nations by Great Britain, the leading maritime poAver. 5. That since the peace of 1815, in Europe, the importance of pacific relations and the poAver of capital have brought about a change of vieAvs in regard to international policy, until the rule above mentioned has prevailed, and there are not Avanting indications of a still larger liberty of maritime commerce. § 189. One of the earliest provisions of medieeA^al Europe within our knoAvledge, is to be found in a treaty betAveen Historical Arles and Pisa, of the year 1221. It is there pro- ‘>'“strations. vided, that in case any goods of Genoese or other public ene- mies of Pisa are found in a ship Avith men of Arles, the men of Arles shall not make them their OAvn, or defend them on i their own account ; and that during the continuance of the war between Pisa and Genoa, it may be laAvful for the Pisans to treat men of Arles, if found on Genoese vessels, and their ! goods, as if Genoese, and to retain such goods, when taken, i Avithout restoring them, or causing them to be restored.^ j This, however, may have begn a temporary and exceptional j convention between the tAvo cities. But a little later, consoiato { at the end of the thirteenth or beginning of the four- 1 Pardessii.«, Collection des Lois Mar., ii., 303, refers to this treaty, which is to be found in Muratoi i’s Antiq. Ital., iv.. Col. 398, as illustrating the usage that the merchandise of a friend, although put on board an enemy’s vessel, ought to be respected. But it shows just the contrary. The te.xt of the latter part is “ si forte aliqnis Arelatensis cum Januensi, donee guerra inter Pisanos et Januenses fuerit, a Pisanis inventus fuerit, in corum navibus, eundo vel redeundo, liceat Pisanis .... Arelateusibus [that is, Arelatenses] et res eorum tamqiiam Jan- uensium offendere et capere, et capta retinere, et non reddere nec reddi facere.” 318 OF THE RELATIONS BETWEEN § 189. teentli century, we meet with a code of wide influence, the Consolato del mare (comp. App. i.), which is remarkable as being the only ancient sea-code that speaks of neutral rights in Avar. In chapter 231 of this code (Pardessus, ii., 303-307) it is provided that if a ship that is captured belongs to friends, and the merchandise on board to enemies, the commander of the cruiser may force the master of the captured vessel to bring him the hostile goods, and even to keep them in his OAvn vessel, until it is brought into a place of safety ; but it is to be understood that the captured ship be carried in toAV to a jAlace Avhere there shall be no fear of enemies, — the commander of the cruiser paying, hoAA^ever, all the freight due for cai'rying the cargo to the place of unloading, etc. Another provision of the same chapter is to the effect that, if the ship taken be hostile Avith a cargo belonging to friends on board, the merchants in the ship, and to whom the cargo in whole or in part pertains, ought to arrange Avith the cap- tain of the captor to ransom the prize, and that he ought to offer it to them at a reasonable price. But if the merchants Avill not make a bargain, he is to have the right to send it into the port Avhere his vessel Avas equipped, and the merchants are obliged to pay the freight, — just as if he convej^ed the goods to the port of destination, — and nothing more than that freight. The code then goes on to speak of injuries suffered by the neutral merchants from the arrogance or Auolence of the captor, in Avhich case, besides being relieved from paying freight, they shall receive compensation.^ According to ]\Ir. Manning,^all the treaties before the sev- enteenth century coincide Avith the Consolato del mare^ in re- gard to the liability to capture of enemies’ goods on board neutral vessels. In 1417, an engagement betAveen Henry V. of England and the Duke of Burgundy (Jean-sans-peur') contained the stipulation tliat goods of Flemings, Avho Avere 1 Mr. Manning cites tliis as c-liapter 273, others as chapter 276. It is ccxxxi. of Pai'dcssiis, and was translated into Englisli in 1800 by Chr. Robinson. In the remainder of these historical illustrations, and in those pertaining to contraband, blockade, and search, I have been greatly assisted by Mr. Manning’s work in its first edition. §189. BELLIGERENTS AND NEUTRALS. 319 the duke’s subjects^ on board ships of Genoa, then at war with England, should be forfeited, if captured, as lawful prize. “ This is the only instance I have met with,” says Mr. Man- ning, “ in which the claim that neutral goods found in an enemy’s ship are liable to capture as laAvful prize has ever been asserted or even been specified by this country, unless in return for the stipulation that enemies’ goods are free in a neutral ship.” (2d ed., p. 314.) In the seA-enteenth century, and onAvard, until toward the end of the eighteenth, no general rule runs through conven- tional law : the same states are found to make treaties of directly opposite character at the same epoch. The Dutch, being the principal carriers of Europe, aimed to put their trade on a footing of security ; and the first treaty betAveen Christian powers containing the principle, “ free ships, free goods,” AA"as one between the United Provinces and Spain in 1650. We say betAveen Christian poAA’ers, because a treaty of France Avifch the Porte, in 1604, contained the same provision. In 1654, England, in a treaty Avith Portugal, for the first time agreed that the ship should cover the cargo ; Avhile, in a treaty of the same year Avith the Dutch Republic, the old rule touch- ing the liabilities of hostile goods continued. Again, in the treaty of Breda, made by tliese same two poAA^ers, in 1667, free ships make free goods for the first time in their diplo- matic intercourse ; Avliile a treaty of England Avith Denmark makes no change in the old usage. By the treaty of the Pyr- enees, in 1659, reneAved in 1668, France and Spain agreed that the cargo should folloAvthe liabilities of the shij), Avhether neutral or hostile, of Avhieh rule the Dutch secured the benefit in their intercourse Avith these two states in 1661. Many treaties of the close of the seventeenth century enlarged the privileges of neutrals, as that of NymAvegen in 1678, and of Ryswick in 1697, as far as France and the Dutch Avere con- cerned. In the commei'cial treaties connected Avith the peace of Utrecht in 1713,* the analogy of the peace of the Pyrenees was folloAved, in making all goods in neutral bottoms free, and 1 Set} D.umout, viii,, 1., p. 348, Ai ts, xvii , xviii. 320 OF THE EELATIONS BETWEEN § 189. in hostile liable to capture. A similar stipulation appears afterwards in a treaty of 1762, between Russia and Sweden, and in that of France with the United States, when she ac- knowledged tlieir independence, in 1778. Thus, while earlier usage and many treaties protected neutral propert}", wherever found, but not enemies’ property, many important treaties of the century before 1780, gave freedom to the neutral ship and to whatever it contained, but not to neutral goods on an en- emy’s vessel. The law of France, meanwhile, followed by that of Spain, Avas severe toAvards neutrals Avith Avhom no treaty existed. The edict of Henry III., given out in 1584, formally confis- cates neutral goods on enemies’ A'^essels, as Avell as enemies’ on neutral A'essels. The maritime ordinance of Louis XIV., framed in 1681, Avent farther still. It contains the folloAving article : “ All ships laden Avith the goods of our enemies, and the merchandise of our subjects or allies found in an enemy’s vessel, shall be laAvful prize.” By allies here, not allies in Avar, but neutrals Avere aimed at, as it appears by an arret made a few years aftei’Avard. Things continued thus until, in 1744 under Louis XV., a regulation freed neutral ships from the infection of the hostile cargo, but the same enactment or- dained that neutral goods, the groAvth or fabric of enemies, should be confiscated. Again, in 1778, under Louis XVI., a regulation contained an implied sanction of the maxim that the neutral flag covers the cargo, coupling it, however, like the treaty of the Pyrenees and others, Avith the opposite, that the hostile flag exposes the cargo ; and these maxims have governed the conduct of France toAvards neutrals since then until recent times, Avith the exception of her retaliatory meas- ures under Napoleon toAvards England, the effects of which fell heavily on neutrals. Spain, in 1702 and 1718, followed the legislation of the elder Bourbon line, and in 1779 adopted the relaxation proclaimed in France the year before.^ The armed neutrality set on foot in 1780 Avas a plan to es- cape from the severe but ancient Avay of dealing Avith neutrals 1 Compare Ortolan, ii., 86 et seq., esp. 93. § 189. BELLIGEEENTS AND NEUTRALS. 321 Tvliicli Great Britain enforced, advancing certain milder principles of international law. These were that neu- tral vessels had a right to sail in freedom from harbor ’“'“‘'■aiity. to harbor and along the coasts of belligerents: that the prop- erty of enemies not contraband of war on neutral sliips shonld be free ; that a port is blockaded only Avhen evident danger attends on the attempt to run into it ; that by these principles the detention and condemnation of neutral ships should be de- termined ; and that, when such vessels had been unjustly used, besides reparation for loss, satisfaction shonld be made to the neutral sovereign. The parties to this league engaged to equip a fleet to maintain their principle, and were to act in concert. These parties were, besides Russia, which announced the system to the powers at war, and invited other neutrals to cooperation, Denmark, Sweden, the Dutch provinces, Prussia, Austria, Portugal, and Naples. Two of the belligerents, France and Spain, concurred, but the other, England, replied that she stood by the law of nations and her treaties. Eng- land had reason to complain of this league, because some of the parties, then at peace with her, — Sweden and Denmark, — were at the time held by treaty with her to just the con- trary principle ; Avhile others had even punished neutral ships for what they noAV claimed to be a neutral right. The first armed neutrality did little more than announce a principle, for no collision took place between them and Great Britain ; but it formed an epoch, because in no previous arrangement between Christian states had the rule, “free ships, free goods,” been separated from the opposite, “ unfree or hostile ships, hostile goods.” In the peace of Versailles, which in 1783 terminated the AA^ar betAveen England and France grow- ing out of our revolution, the two powers returned to the stip- ulations of the peace of Utrecht Avhich have been mentioned above. In the opening years of the French revolution England re- coA’ered her influence over the poAvers of Europe, and several of them abandoned or suspended the rule for Avhich in great measure the armed neutrality was formed. And the national 21 322 OF THE EELATIONS BETWEEN § 190. convention of France, in 1793, decreed that enemy's goods on board neutral vessels, but not the vessels themselves, should be lawful prize, and that freight should be paid to the captor. The United States, in treaties with foreign powers, have gen- erally aimed to extend the rights of neutral can iers Treaties of • i i t the United as fav as possible. In some conventions, however, that Avith Spain in 1819, Avith Columbia States as m that AVitli Spain in 1819, Avitu uoiumoia in 1824, AAuth Central America in 1825, a someAvhat cumbrous rule of reciprocity has been folloAved, namely, that free ships shall make goods free, only so far as those poAvers are con- cerned Avhich recognize the principle. But in the treaty Avith England, in 1794 (comp. § 124), it is agreed that the prop- erty of enemies on neutral vessels may be taken from them. And in one made Avith France, in 1800, the maxim that hostile ships infect the cargo goes along, as Avas then not unusual, Avith the freedom of neutral vessels. Twenty years after the first armed neutrality a second Avas Second foi’mcd, to Avliicli Russia, the Scandinavian poAA^ers, trMty of Prussia AA'ere parties ; and Avhich derived the 1800. pretext for its formation from differences of opinion concerning convoy (§ 209), as Avell as from alleged violations of neutral rights by English cruisers in the case of a SAvedish vessel. The platform of this alliance embraced much the same principles as that of 1780, together Avith new claims con- cerning convoy. But nothing was gained by it saving some trifling concessions from Great Britain, Avhile Russia, Den- mark and Sweden ere long: o-ave in their adherence to the English views of neutral liabilities. (5 209 and Append, ii., under 1800.) § 190. During the years betAveen 1814 and 1854, Avhich were dis- Ruicsof the turbed by no important European Avar, the rules of Avar respecting neutral trade Avere of no immediate importance. On the breaking out of the short but important Crimean Avar,^ notice Avas given by Great Britain ^ At this time England claimed to seize enemy’s goods on neutral ships, whil« peace of Paris in 1856. § 190. BELLIGERENTS AND NEUTRALS. 323 and France that for the present the commerce of neutrals Avith Russia Avould not he subjected to the strict operation of the rights of AA^ar as commonly uiulerstood.i At the peace of Paris in 185G, the principles foreshadowed in the declaration of the belligerents, Avhicli appear in the note below, Avere em- bodied in a declaration to Avhich all the parties to the treaty subscribed. We haA’e often spoken of these declarations, AAdiich form an epoch in the history of international law, hut Ave here insert them in full, although but one of them refers to our present subject : — 1. PriA’ateering is and remains abolished. (§ 128.) 2. The neutral flag coA'ers enemy's goods, Avith the excep- tion of contraband of Avar. 3. Neutral goods, Avith the exception of contraband of war, ai'e not liable to capture under an enemy’s flag. 4. Blockades, in order to be binding, must be effectiA^e ; Franco seized neutral goods on enemies’ ships. As they were allies in this war, neutrals, between the two rules, would have fared hardly, but for the con- cessions of France and England, mentioned in the text. — (T. S.) Manning, 249, cd. 2. ^ The concurrent declarations of England and Ejance, in their Engli.sh dres.s, were as follows, under date of March 28-29, 18.54 : — “ Her Majesty, the Queen of the United Kingdom of Great Britain and Ire- land, having been compelled to take np arms in support of an allv, is desirous of rendering the Avar as little onerous as possible to the poAvers with Avhom she remains at peace. “ To preserve the commerce of neutrals from all unnecessary obstruction. Her Majesty is Avilling for the present to waive a part of the belligerent rights apper- taining to her by the laAv of nations. “ It is impossible for Her Majesty to forego the exercise of her right of seiz- ing articles contrahand of Avar, and of preventing neutrals from bearing the ene- my’s des|)atches, and she must maintain the right of a belligerent to prevent neu- trals from breaking any effective blockade, Avhich maybe established Avith an adequate force against the enemy’s forts, harbors, or coasts. “ But Her Majesty Avill Avaive the right of seizing enemy’s property, laden on board a neutral vessel, nidess it be contraband of Avar. “ It is not Her Majesty’s intention to claim the confiscation of neutral prop- erty, not being contraband of Avar, found on hoard enemy’s ships, and Her Maj- esty further declares that, being atjxious to lessen as much as po.ssiblc the evils of Avar, and to restrict its operations to the regularly organized forces of the country, it is not her present intention to issue letters of marque for the com- missions of privateers.” 324 or THE RELATIONS BETWEEN § 190. that is to say, maintained by a force sufficient really to prevent access to the coast of an enemy. Other powers were to be invited to accede to these articles, but only in solidarity and not separately. The third and fourth being already received by Great Britain, the abandon- ment of privateering must be regarded as her motive for waiv- ing her old and fixed doctrine in regard to the liability to capture of hostile goods on board a neutral vessel. The minor powers of Europe, whose interests lie on the side of neutral privileges, and nearly every other Christian state in the world, — in Europe, all except Spain; on this side of the Atlantic, Brazil and a number of the Spanish republics, but Mexico and the United States have not yet given up privateering, — have acceded to this declaration. The negative reply of the United States to an invitation to do the same, with its reasons, has been already given in § 128. If the larger exemption of all innocent private property from the liabilities of Avar, to Avhich the United States offers to be a party, should become incorpo- rated in the law of nations, her attitude Avill have been one of great advantage to the Avorld. If not, her plea of self-defense in keeping up the system of privateering Avill probably be re- garded in another age as more selfish than Avise.^ 1 Tlie true policy of the Uuited States is to come uiuler the operation of the four articles as soon as possible. The refusal was based on the utility of priva- teers in saving the expense of maintaining a large navy. But if a w'ar should break out between the United States and any of the nations which signed the four articles, that is with any, excepting one or two, of the important civilized nations of tlie world, we could have no benefit from the four articles, and privateers could swarm the sea in pursuit of onr merchant vessels. Nor could we, if we were neutrals, cariw the goods of cither enemy upon our vessels, for the four artieies do not ap])lv exce)it to the siguers of them. In war, especiallv with a leading commercial power, that would happen again which happened in the late rvar of the .secession, when 715 vessels, measuring 480, 8S2 tons, were transferred to Brit- ish capitalists. Such was the result of a ])altry naval force upon our shipping interest. On the, other hand, by acceding to the four articles, we should be in a better po.'-ition to aid in carrying through the principle of tlie entire exemption of all jirivate propertv from capture, whicli should be engaged in innocent com- merce And that jioint once reached, what should we want of pirivateers, or of a large regular navv 7 Our position in relation to the powers of Europe would generally be neutral, but now we cut ourselves off from the advautage.s of neu- trality, which are constant, on account of a possible advantage of a very ques tionable character. § 191. BELLIGERENTS AND NEUTRALS. 325 § 191- Until about the middle of the eighteenth century, writers on the law of nations for the most imrt held tliat . neutral goods were safe in any vessel, and hostile publicists, liable to capture in any vessel. Some of the earlier writers, as Grotius, Zouch, and Loccenius, go beyond this rule in severity towards the neutral ship, and seem to think that if the owners admitted hostile property on board, the vessel might be made prize of. They also lay it down that goods on hostile vessels belong presumptively to the enemy, but may be saved from harm on proof to the contrary. Bynkershoek in 1737, and Vattel in 1758, state the doctrine as it has been un- derstood by those who maintain that enemy’s goods on neutral vessels but not neutral on enemy's vessels are lawful prize. The latter expresses himself thus : “ If we find an enemy’s effects on board a neutral ship, we seize them by the rights of war ; but we are naturally bound to pay the freight to the master of the vessel, who is not to suffer by such seizure. The effects of neutrals found in an enemy’s ship are to be restored to the owner, against whom there is no right of confiscation ; but without any allowance for detainer, decay, etc. The loss sus- tained by the neutrals on this occasion is an accident, to which they exposed themselves by embarking their property in an enemy’s ship ; and the captor, in exercising the rights of war, is not responsible for the accidents 'which may thence result, any more than if his cannon kills a neutral passenger who happens unfortunately to be on board an enemy’s vessel.” Mr. Manning cites Moser (1780) and Lampredi (1788) to the same effect. English authorities are unanimous in declaring these to be rules of international law. Our Supreme Court, and our principal writers on this branch, take the same ground. Chancellor Kent says : “ The two distinct propositions, that enemy’s goods found on board a neutral ship may be lawfully seized as prize of war, and that the goods of a neutral found on board an enemy’s vessel are to be restored, have been explicitly incorporated into the jurisprudence of the United 326 OF THE EELATIOxXS BETWEEN § 191. States, and declared by tlie Supreme Court to be founded on the law of nations. I should apprehend the belligerent right to be no longer an open question ; and that the anthority and usage on which that right rests in Europe, and the long, explicit, and authoritative admission of it by this country, have concluded us from making it a subject of controversy ; and tliat we are bound in truth and justice to submit to its regular exercise, in every case, and with every belligerent power who does not freely renounce it.” ^ Again, Dr. Wheaton says ; “Whatever may be the true, original, abstract principle of natural law on this subject, it is undeniable that the constant usage and practice of belligerent nations, from the earliest times, have subjected enemy’s goods in neutral vessels to capture and con- demnation, as prize of war. This constant and universal usage has only been interrupted by treaty stipulations, forming a tem- poraiy conventional law between the parties to such stipula- tions.” “ The converse rule, which subjects to confiscation the goods of a friend on board the vessels of an enemy, is mani- festly contrary to truth and justice.” ^ The opposite doctrine, in regard to enemy’s goods on neu- tral vessels, was first maintained by a Prussian commission ap- pointed to look into the complaints of certain merchants who had had French goods taken out of their vessels by English cruisers in 1744. They venture to affirm that such conduct is not only contrary to the law of nations, but also to all the treaties which were ever concluded between maritime powers, — two propositions which are equally untenable. In 1759, Martin Hlibner, a professor at Copenhagen, claimed that this 1 I., 129-131, Lect. vi. 2 Elements, iv., 3, §§ 19, 21. It may bs added that the United State.s, in their diplomatic intercourse with foreign governments, liave long- claimed it to be a neutral right that free ships should make free goods. Mr. Marev in 1854, in a note to the British envoy at AVashington, exiircsses the Prcsident’.s satisfaction that “ the principle tliat free ships make free goods, which the United States have so long and so strennonsly contended for as a neutral right, is to have a qntilified sanction ” in the war of England and France with Russia. Ho means, probably, no more tlian tliat this is a fair and just claim of neutrals; not that it is an admitted one, or a part of actual international law. And such we believe to have been the ground previously taken. § 191. BELLIGERENTS AND NEUTRALS. 327 principle ought to be admitted into international larr ; and chiefly on two grounds, — first, that neutral ships are neutral territory, and again that commerce is free to neutrals in war as well as in peace ; since war ought not to injure those who are not parties in the contest. In more recent times several writ- ers on the law of nations have taken the same position. Thus Kliiber says, “On the open sea every ship is exterritorial in reference to every state except its own : a merchant ship is to be looked on as a floating colony. Therefore a belligerent power on the open sea ought to be permitted neither to visit a neutral vessel, nor to take hostile goods out of it ; still less to confiscate the ship on account of the goods found in it.” And again : “ A belligerent power ought to be allowed as little to confiscate neutral goods found on an enemy’s vessel, as if they had been met with on the soil of tlie enemy’s territory.” De IMartens holds to the freedom of neutral ships.^ Ortolan, while rejecting this ground, turns to sounder principles of nat- ural justice. “If the goods,” says he, “ put on board a neu- tral vessel have not, of themselves, a hostile character, that the neutral should take pay for his ship and for the labor of his sailors has nothino; in it irreconcilable with the duties of neu- trality. Wh}’, then, should a belligerent obstruct such trade by seizing the cargo ? Is it not legitimately in the hands of friends, who have made and have had the right to make a bar- gain to carry it for pay to a place agreed upon, and who, apart from the freight, have an interest in securing its pres- ervation, since on this may depend the success or failure of the commercial enterprise in which they are engaged ? And in hindering, by the confiscation of goods transported, this commerce of freight and commission, do not belligerents abuse the principle, which permits them to capture enemy’s prop- erty on the sea, by pushing this principle into consequences which unjustly attack tlie independence and essential rights of friendly nations?” He adds that the practice of paying freight for the goods thus taken out of neutral ships contains 1 Kliiber, § 299, p, 354, iu German ed. of 1851. De Martens, §316, vol. ii., 322, Paris ed. of 1858. Ortolan, ii., 91, ed. 4 ; or Lib. iii., chap. v. 328 OF THE RELATIONS BETWEEN 191. a kind of confession that the nentval has sustained an injiuy, whilst yet the payment of freight is by no means an adequate compensation for all their losses. §192. Wliile the neutral can put his goods on the merchant vessel of either of the belligerents in safetyq it has been property in made a question whether he can make use of their enemy's tcs- armed vessels for that purpose. The English courts have decided against, and the American courts in favor of the neutral’s using such a conveyance for his goods. ^ On the one hand, it may be said that in this act an intention is shown to resist the right of search, and the inconveniences of cajDture, and of transportation to a port such as the captor may select. On the other hand, the neutral, his goods being safe already, has perhaps no great motive to aid in resistance, for the complete loss of his goods is endangered by an armed en- gagement. If, however, the neutral can be shown to have aided in the arming of the vessel, it is just that he should suffer. The decision of this case, as Chancellor Kent observes,^ is of very great importance. Yet with the discontinuance of pri- vateering such cases would cease, for few ships will be armed with the purpose to resist public ships of war. § 193. Contrabannum^ in medioBval Latin, is merces hanno inter- contrabauj dictcB. (Du Caiigc.) Banuus, 01’ haunum, repre- of war. seated by our ban, and the Italian bando, denoted originally an edict, a proclamation, then an interdict. The 1 Soe the Fanmj, 1 Dodson’s Adm. Rep., 443, for the English, the Nereide, 9 Crniicli’s Bcp., for the American views. In thi.s case Story followed the Englisli decl.-iious, bitt the other tliree judges di.ssented and afterwards persevered in their o]iinion. {Afalania, 3 Wheaton, 41.5.) Pliilliinore tliinks that Story and Scott together settle the case against the righ s of nentrals to ship goods on board of armed vessels of a belligerent, as far as international law is concerned, though conceding that Story does not represent American prize law. (Phill. iii., 550, 551, ed. 2.) — T. S. 2 I., 132, Lect. vi. § 193. BELLIGERENTS AND NEUTRALS. 329 sovereign of the country made goods contraband by an edict prohibiting their importation or their exportation. Such pro- hibitions are found in Roman law. A law of Valentinian and his colleagues (Cod. iv., 41, 1), forbids the exportation of wine, oil, and fish-sauce (liquamen) to barbarian lands ; and another of IMarcian (ibid., 2), the selling of any arms or iron to barbarians, the latter on pain of confiscation of goods and death. Several Popes tlu’eatened with the ban the conveyance of arms to infidels, and similar prohibitions are found in some of the ancient maritime codes. Contraband of war perhaps denoted at first that of which a belligerent publicly prohib- ited the exportation into his enemy’s countiy, and now those kinds of goods which by the law of nations a neutral cannot send into either of the countries at war without wrong to the other, or which by conventional law the states making a treaty agree to put under this rubric.^ If there was a famine in one of the countries at war, and a friendly power should send provisions thither, either at the public expense or for a compensation, the act would be a law- ful one. But if the neutral, instead of wheat, should send powder or balls, cannon or rifles, this would be a direct encour- agement of the war, and so a departure from the neutral po- sition. The state which professed to be a friend to both has furnished one with the means of ficjhtino: a^-ainst the other, and a wrong has been done. Now the same wrong is com- mitted when a private trader, Avithout the privity of his gov- ernment, furnishes the means of Avar to either of the warring parties. It may be made a question AAdiether such conduct on the part of the private citizen ought not to be prevented by his government, even as enlistments for foreign armies on neutral soil are made penal. But it is claimed to be difficult for a government to watch narroAvly the operations of trade, and it is annoying for the innocent trader. Moreover, the neutral ought not to be subjected by the quarrels of others to 1 The cxplanntion of contrabnimum from tlie church ban laid on the carrying of arms, etc , to the enemies of Christianity seems to be less Avorthy of accepta- tion than that given in the text. 330 OF THE RELATIONS BETWEEN § 193. additional care and expense. Hence, by the practice of nations, he is passive in regard to violations of the rules concerning contraband, blockade, and the like, and leaves tlie police of the sea and the punishing or reprisal power in the hands of those Avho are most interested, the limits being fixed for the punishment by common nsage or law. It is to be observed that the rules concerning contraband relate to neutrals exporting such articles to a country at war. There is nothing unlaAvful, Avhen merchant vessels of either of the belligerents supply themselves in a neutral mart witli articles having the quality of contraband. Here, again, the neutral is passive, and leaves the law of nations to be exe- cuted by others, who Avould make all the property, if captured, prize of war.^ 1 Comp. § 173. A form.'il wny of .stilting the relations of ,a neutral country to contraband trade, taken by some tcxt-writcr.s, is found in the jiroposition that sucli a transaction cannot occur on neutral tenitorv, that is, that it begins when the articles called contraband are brought upon the high sea, or within the enemy’s limits on the land All admit that when the act of exportation from the neutral territory begins, an act of violation of neutrality on the part of some one commences. The question may still ho tisked whether the government of the neutral is not bound to inferferc, when it has evidence that its subjects are thus aiding a belligerent against a friend, and is not bound also to acquaint itself with such evil intentions. In the present state of the law of nations, this is not felt to be obligatory, although sitch trade is immoral, a'nd tends to produce lasting na- tional animosities. Ajuster and hnmaner policy would make all innocent trade with the enemy free, and requite a neutral to pass stringent and effectual laws against contraband trade. Phillitnore (iii., §§ 237-241) denies that such articles can even be lawfullv sold to the belligerent, within the territory of the neutral. “ If it be the true character of a neutral,” says lie, “to abstain from every act which may better or worsen the condition of a belligerent, the uidawfulness of anj'snch sale is a nece.ssarv conclusion from these y)rcmises. For what does it matter where the neutral supplies one belligerent with the means of attacking another 1 How does the question of locality, according to the jninciples of eternal justice and the reason of the thing, affect the itdvantago to one belligerent or the injury to the ocher accruing from this act of the alleged neutral 1 ” He goes on to say, with justice, that foreign enlistments stand on the same ground with the s.de of munitions of war. If they are prohibited and made penal, as they are extensively, w'hv should not these be so also ? And be regrets that Judge Story should have said (case of the SaHlis>:ima Trinidad. 7 AVheaton, 340), “ There is nothing in our laws or in the law of nations that forbids our citizens from sending armed vessels as well as munitions of war to foreign ports for sale. It is a commercial adventure which no nation is bound to prohibit ; and which only exposes the per- § 194. BELLIGERENTS AND NEUTRALS. 331 §194. It is admitted that the act of carrying to the enemy arti- cles directly useful in Avar is a Avrong, for Avhich the injured party may punish the neutral taken in the arc* contra- act. When, hoAvever, Ave ask AAdiat articles ai’e con- traband, the ansAver is variously given. Great maritime poAA'- ers, Avhen engaged in Avar, have enlarged the list, and nations generally neutral have contracted it. Treaties defining Avhat is contraband have differed greatly in their specifications ; the same nation, in its conventions Avith different poAvers at the same era, has sometimes placed an article in the category of contraband, and sometimes taken it out. Writers on the Iuav of nations, again, are far from uniformity in their opinions. To make the subject more clear, it is necessary to enter into a consideration of different classes of articles. 1. Articles by general consent deemed to be contraband are such as appertain immediately to the uses of Avar. Such are, in the Avords of a treaty of the year 1800, nfitions; between England and Russia, cited by Mr. Manning, “can- nons, mortars, fire-arms, pistols, bombs, grenades, bullets, balls, muskets, flints, matches, powder, saltpetre, suljDhui-, cui- rasses, pikes, sAvords, belts, cartouch-boxes, saddles, and bri- dles beyond the quantity necessary for the use of the ship.” In the instructions of the French government to the officers of the navy in the Crimean Avar, given in March, 1854, the arti- cles enumerated are “ bouches et armes a feu, armes blanches, projectiles, poudre, snlpetre, soufre, objets d’equipment, de campement et de harnachement militaires, et tons instru- ments quelconques fabriques a I'usage de la guerre.” The sons engaged in it to tlic penalty of confiseation.” I too regret that Judge Story slionld liave had to say this, if it be true. The same fact prevails everywhere as to munitions of war. But as to armed vessels of war, and even vessels made ready for an armament, tire they not too decisively tlie begitining o£ a ho.stile expedition to be allowed by any nations that prohibit such expeditions from is- stiing out of their territories ? The views of Phillimore do him great honor. If contraband trade in any article can be prevented within the borders of the neutral, he is bound, in right reason, but not by the present law of nations, to prevent it. 332 OF THE RELATIONS BETWEEN § 194. following enumeration recurs in several treaties between the United States and Spanish Ameidcan republics : “ 1. Can- nons, mortars, howitzers, swivels, blunderbusses, muskets, fusees, rifles, carbines, pistols, pikes, swords, sabres, lances, spears, halberds, hand-grenades, bombs, powder, matches, balls, and all other things belonging to the use of these arms. 2. Bucklers, helmets, breastplates, coats-of-mail, infantry belts, and clothes made up in a military form and for military use. 3. Cavalry belts, and horses with their furniture. 4. And generally, all kinds of arms and instruments of iron, steel, brass, and copper, or any other material, manufactured, pre- pared, and formed expressly to make war by sea or land.” ^ 2. Horses have been mentioned as being contraband in very many treaties extending down into this century. “ All the principal powers have so looked upon them at different times,” says Mr. Manning, “with the exception of Russia.” 3. In a few treaties belonging to the seventeenth century, unwrought metals and money have been so regarded. In others, money is expressly excepted, as in that of Utrecht, in 1713, in that of England with France, in 1786, and in that between Spain and the United States, in 1795. 4. Naval stores and materials for ship-building have been declared to be contraband in many treaties, and in some others have been excepted from the list. The treaty of 1794, be- tween Great Britain and the United States, after declaring several kinds of naval stores to be contraband, adds that “ generally, whatever may serve directly to the equipment of vessels, unwrought iron and fir-planks only excepted,” shall partake of this quality. Chancellor Kent says that the gov- ernment of the United States has frequently conceded that materials for the building, equipment, and armament of ships of war, as timber and naval stores, are contraband, (i., 137.) The Englisli prize courts, in the case of such articles, and of 1 As ill tlie treaty with Columbi.a, October 3, 1824, with Venezuela, January 20, 1836, with Guatemala, March 3, 1849, with New Granada, June 10, 1846, with San Salvador, January 2, 1850, with Mexico, April 5, 1831. The fourth and fifth of these make contraband “ provisions also that are sent into a besieged or blockaded place.” § 194. BELLIGERENTS AND NEUTRALS. 333 provisions, have been led to adopt a set of rules of which we shall speak a little beloAV.^ 5. Provisions are not in themselves contraband, hut, accord- ing to a number of text-writers, as Grotius, Vattel, and sev- eral modern, especially English authorities, may become so, where there is a jrrospect of reducing the enemy by famine. The usage in regard to them has beeir shifting. Queen Eliza- beth’s government forbade the Poles and Danes to convey provisions to Spain, on the ground that by the rights of Avar an enemy might be reduced by famine. The conventions, ! Avhich, at various times in the seventeenth and eighteenth cen- turies, declared that they Avere not contraband, shoAV at least a fear that bellia;erent nations would treat them as sirch. At the outburst of the Avar succeeding the French Revolution, Avhen France was almost in a state of famine, conv^entions Avere made betAveen Great Britain on the one hand, and Russia, J Spain, Portugal, Prussia, and Austria on the other, Avhich re- stricted the conveyance from their respective ports into France, of naA’al and military stores, and of provisions, — Avhether ce- real grains, salt fish, or other articles. ■ The French Conven- I tion, also, in the same year, 1793, in Avhich these treaties AA^ere made, declared that cargoes of neutral ships, consisting of I grain, and destined for a hostile port, might be seized for the i use of France, on the principle of preemption, of Avhich Ave shall presently speak. These measures, in regard to provisions ^ Ships ready made and capable of use for imrposes of war hare not occupied the attention of treaty-making powers. Iliibner declares them contraband. [ Heffter is of the same judgment. (§ \5~,h.) riiillimore says “that the sale ; of a dVip for purposes of war, is the sale of the most noxious article of war. The ; sale by a neutral of any ship to a belligerent is a very suspicious act in the opin- I ion of the English and North American prize courts', and one which the French I prize courts refuse to recognize.” And he goes on to cite a case in which a ship j adapted to purposes of war was sent with goods on board to a belligerent port, I under instructions to bare her sold if po.ssible, and was condemned, (iii., p. 448, ed. 2.) Hautcfeiiille, on the other hand, says that he cannot undestand how a mere vessel, as yet unarmed, -whatever may be its destination, is an article of contraband, (ii., 145.) “It is nothing but a vehicle.” And so sulphur and i saltpetre are nothing but commodities ; they are incapable as yet of a military j use. Our authorities would no doubt regard such vessels as contraband. (Story, : in 7 Wheaton, 340.) 334 OF THE RELATIONS BETWEEN § 194. especially, were earnestly resisted by Denmark and the United States, which were then the leading- nentral powers. The treaty of 1794, between Eng-land and the United States, con- tains an admission that provisions and other articles, not gen- erally contraband, might become such according to the existing law' of nations, and proceeds to prescribe that if seized they shall be paid for, or, in other words, allows, as between the contracting parties, of the practice of preemption. §195. In view of these historical statements, showing the varjdng practice of nations in regard to certain articles, we Results for ^ ° cieteimining may Say, what arti- . , • i i i ^ cicsarecon- 1. 1 hat Call lustly be reffiirded as con- traband. ” i iiii r traband, unless so regarded by the law of nations, or by expiess convention between certain parties. The defini- tion of contraband must be clea)- and positive. For as bellig- erents are authorized to inflict severe evils on neutrals trading in contraband articles, it is phiin that they alone cannot define in what contraband consists. The heavy penalty implies a heavy crime, understood to be such when the penalty was al- lowed. There must be certain kinds of articles, such as afford direct assistance, not to the enerny., hut to the enemy's military operations., and known beforehand., and hence implying a de- parture from the spirit and rules of neuti-ality, which can be seized and confiscated. Or, since the articles of direct use in war may change from age to age, at the most, new articles — as, for instance, in these days of war-steamers, steam-en- gines, coals, and the like — can justly come into this list only when there is satisfactory proof that they are for the direct uses of war. And this, of course, only where treaty has not speci- fied certain definite articles, and such alone. In conformity .with this yninciple, an order of council of Great Britain, dated February 18, 1854, prohibits the exportation from the king- dom, or by conveyance coastwise, of the parts of machinery used in steam-vessels. See Phillimore, iii., 149, who adds that coal may, under the particular circumstances of the case, § 195. BELLIGERENTS AND NEUTRALS. 335 regard being had to its quality and destination, become liable to seizure. Thus, in these days of -war-steamers, the supply of coal to belligerent vessels of that sort becomes of great importance. Shall coal be withheld from them like ammunition, or is it a necessary for motion, like sails to a cruiser that has suffei'ed in a storm? The English regulations of January 31, 1862, direct that ships-of--war or privateers of either belligerent shall be furnished with only so much coal as may be sufficient to carry them to the nearest port of their country, or to some nearer destination, and that no coal shall be again supplied to any such ship-of--war or privateer in the same or any other port under British jurisdiction Avithout special permission, until after the expiration of three months from the time of the previous supply. For the difficulties attending such legu- lations as deny to belligerent A'essels the ordinary hospitalities of friendly ports see Professor Bernard's “ British Neutrality,” p. 415 et seq., and comp. pp. 139-140. 2. The doctrine of occasional contraband, or contraband ac- cording to circumstances, is not sufficiently definite oec.ir.iouai and fixed to be regarded as a part of the la w of na- tions, although English and American courts accept of it. Naval stores and provisions are the articles Avhich come here under our notice : uoav as these may foran the principal ex- ports of a nation, it is jilain that by this rule the neutral's trade may be quite destroyed. The rule Avould thus be exces- sively harsh, if the usual penalty hanging over contraband Avere inflicted. To mitigate this severity, and in a certain sense to pacify neutrals, the British prize judges, especially Sir William Scott, adopted certain discriminating rules, ac- cording to which the articles in question partook more or less of the contraband character. Thus, if they were the produce of the country from Avhich they had been exported, or in an unmanufactured slate, or destined to a commercial port, they AA’ould be vieAved Avith greater imlulgence than if shipped from a country Avhere they Avere not groAvn, or in a manufactured state, or destined to a naval station. Sir William Scott after- 336 OF THE RELATIONS BETWEEN § 195. wards withdrew his indulgence from naval stores destined to a commercial port, on the ground that they could he used there to equip privateers, or be transported to a port of naval equipment. 1 And in some cases a yet milder rule Avas adopted by Great Britain, — that of preemption, of which we shall speak by itself. §196. In regard, noAV, to this doctrine of occasional contraband, Is it just, say, that it is, imjuat to neutrals. If it be tioncd’by doubtful Avlicther an article pertains to the class of usage? contraband or not, the penalty attached to this class of articles ought cei’tainly not to be levied upon it. It is either contraband or not, and is not so, if there is a doubt to what class it belongs. To visit it Avith a half penalty, because it is of doubtful character, is like punishing on a lower scale a crime half proven.^ Secondly. Does usage sanction occasional contraband? So far as I can see, the most that can be said is that belligerents have sometimes put doubtful articles into the list of contra- band, and neutrals have sometimes submitted to it ; but that no clear practice appears to have prevailed. The rule, then, Avill amount to this, — that the belligerent, if a leading mari- time poAver, Avill set up rules according to his OAvn interest at 1 Comp. Wheaton, Elements, iv., 3, § 24, p. .'519. 2 Comp. Dana on Wheaton, 226, who criticises a remark of mine at the be- ginning of § 196 (formerly § 181), .and perhnps justly. The main point is proof of intention to aid the militan/ operations of the enemy by the exportation of a particular article. As for what is said in § 19.'5, 2, “that the doctrine of occa- sional contraband is not vet sufficiently established to be regarded as a part of the law of nations,” pcrh.'ips that is too strong an expression, yet to put the decision what is contral>and into the hands of a belligerent for the time is, I must say, monstrotis. The needs of w.ar change continually. According to th.at principle, a belligerent could give out a half a dozen rules during a war of an_v length, and greatly oppress neutrals. If a belligerent would kec]) out articles which Averc of use to a particular jdace, btit not otherwise generally prohibited, let him use his right of blockade. As for Avriters on the law of nations I may refer to Bluntschli, d/or/. lo/c/rerr., § 807, Avho says, “It is against good usage (“gute Sitte ”) to treat the trade in provisions as contraband of war, although iho same serves for the use of the hostile army.” But, he adds that a surrender of a be- sieged or blockaded jjlace mtiy be brought about by starvation. § 196. BELLIGEEENTS AND NEUTRALS. 337 tlie time, and carry them through. Is not this an unsettling of all international rules, a real tyranny of a superior power? Thirdly. The authority of the older text-writers is more in favor of such a distinction. In an often-cited passage of Grotins (iii., I, § 5), after dividing things in the hands of those who are not enemies into such as have a use in war alone, such as have no use in war, and such as have a use in war and aside from war, he says that in regard to this third class of articles ancipitis usus ; “ si tueri me non possum, nisi qiuE mittuntur intercipiam, necessitas, ut alibi exposuimus, jus dabit, sed sub onere restitutionis, nisi causa alia accedat.” 1 His commentator, Samuel de Cocceii, on this passage observes, that “ necessity gives no right over the goods of another ; so that if my enemy is not aided by such articles, I cannot inter- cept them, although I may be in want of them. On the other hand, if the power of the enemy is thereby increased, I can take them, albeit I may not need them myself.” ^ Bynker- shoek, although he differs from Grotins as to the rule of ne- [ cessity, and regards a commerce in the raw materials of war i as not illicit, yet thinks they ma}^ be prohibited, if the en- emy cannot well carry on war without them. ( “ Qua^st, J. j P.,” i., 10.) And Vattel decides that even provisions are con- traband in certain junctures, when we have hopes of reducing ; an enemy by famine. Modern English writers and Chancellor Kent give their sanction to the doctrine of occasional contraband, opinions in while Wheaton, without expressing a positive opin- respect to it. ion, seems averse to it. Several Continental authors of repute either deny it to be a part of the law of nations, or admit it with cautious reseiwe. Heffter says (§ 160), “Never have belligerents been allowed, alone, and according to their good pleasure, to make restrictions of this kind, although wheu ])ossessed of powder enough they have assumed to do this.” And he adds, in regard to doubtful articles, that belligerents can take measures against neutrals exporting them only when a destination for the enemy’s government and military forces 1 Lausanne eel. of Gpotius, vol. iii., p. 602. 22 838 OF THE RELATIONS BETWEEN § 196. can be ascribed to them on sufficient grounds. Ortolan (ii., 179) denies that provisions and objects of prime necessity can ever be considered contraband, but conc'eiles that a belli<>:- erent may dcelarc objects to be contraband which are not usually such, Avhen they become what he calls contraband in disguise, as the parts of military machines conveyed separately, and ready to be put together. His countryman, Hautefeuille ( “Droits des Nations Neutres,” ii., 419 i), maintains that no products of use in peace and war both can in any case be con- traband, “ and that nothing else is contraband but arms and munitions of Avar actually manufactured, proper, immediately and Avithout any preparation or transformation by human in- dustry, to be employed in the uses of Avar, and not capable of receiving any other destination.” Kliiber, after saying (§ 288) that naval stores and materials are not to be reckoned contra- band, adds, that in case of doubt as to the quality of particu- lar articles the juristic presumption inclines to the side of natural right, Avhich alloAvs the natural freedom of trade. De Martens says (§ 318) that “ Avhere no treaties inteiwened, the powers of Europe, Avhen they AV'ere neuter, maintained long before 1780 [the date of the first armed neutrality] that only articles of direct use in AAvar could be considered and treated as contraband by belligerents.” The United States, it is belieA’ed, has steadily taken this ground in regard to pro- visions, although not in regard to naval stores. The doctrine of occasional contraband received its Avidest extension in the Avar of England against revolutionary France. The British representatUe to our goATrnment claimed, in 1793 and 1794, that by the law of nations all provisions Avere to be considered as contraband, in the case Avdiere the depriv- ing the enemy of these supplies Avas one of the means em- ployed to l educe him to reasonable terms of peace, and that the actual situation of Frame Avas such as to lead to that mode of di.stiessing her, inasmuch as she had armed almost the Avliole laboiing clas.s of (he people for the purpose of com- mencing and supptorting hostilities against all the goverm 1 1st ed. Comp, ii., 157, 2d ed. § 197. BELLIGEEENTS AND NEUTRALS. 339 ments of Europe.^ If a government h;id armed nearly its whole laboring population, the laws of political economy would probably reduce it to weakness far sooner than the cruisers of its enemy would have that effect. It may be added that the French National Convention led the way in seizing neutral ships laden with provisions, and bound to an enemy’s port, by a decree of May 9, 1793, which provoked a retaliatory measure of Great Britain, in June of the same year. (Phillimore, iii., 422, ed. 2.) The decree (for which see Marten’s “ Recueil,” v., 382, and the reprint of the “ Moniteur,” xvi., 351) ordains that the provisions shall be paid for, at their value at the port of their destination, to- gether with the freight stipulat-vd by the shipper, and with j compensation for detention, as determined by a prize court. I The same decree contains the article referred to in § 189 (last paragraph but two), relating to enemy's goods on board of neutral vessels. § 197. The harshness of the doctrine of occasional contraband brought into favor the rule of preemption, which was a sort of compromise ^ between the belligerents (if masters of the sea) and the neutrals. The former claimed that such articles should be confiscated, the latter that they I shonld go free. Now, as the belligerent often wanted these j articles, and at least could hurt his enemy by forestalling I them, it came nearest to suiting both 2)arties if, when they i were intercepted on the ocean, the neutral was compensated i by the p)ayment of the market price, and of a fair profit. This rule, which was more especially aj^plied by the Eng- lish prize courts shortly after the French Revolution, would be a relaxation of the severe right of war, if the doctrine of occa- sional conti aband could be established, and as such, be a con- I cession to neutrals. But it does not, as an independent rule, possess sufficient support from usage and authority. There are two sources from which arguments in its support have 1 Kent, i., 1.37, Lect. vii. 2 So Sir W. Scott calls it in Robinson’s Rep., i., 241. 340 OF THE EELATIONS BETWEEN § 197. been derived : (1.) An old practice of European governments was to seize the grain or other necessary articles found in the hands of foreigners in their ports, on promise of compensa- tion, which naturally would be slow in coming. Many treaties of tlie seventeenth century put an end to this half-barbarous exercise of sovereignty between the contracting powers, and it is believed to be unknown to the law of nations, unless (2.) under the form of a rule of necessity. Such a rule in a broad sense would authorize, xolietlier in war or peace., the tak- ing of proj)erty from subjects or foreigners, if self-preserva- tion required it. A more limited necessity is contemplated in the passage of Grotius already cited, as pertaining to a bel- ligerent, and justifying him in detaining the goods of those who are not enemies, if otherwise he cannot defend himself. But modern preemption is limited in extent to cai’goes of neu- trals bound to the enemy’s ports, and is practiced to distress the enemy, not to relieve an imminent distress of one’s own. “ I have never understood,” says Sir William Scott, “ that this claim [of preemption] goes beyond the case of cat’goes avow- edly bound for enemy’s ports, or suspected on just grounds to have a concealed destination of that kind.” Here we may ask whether modern preemption rests on any ground of justice. On this point we remark : (1.) That the nearest analogy is the taking away in a hostile country of nec- essaries from the non-belligerent inhabitants for the use of the invading army. This is a right of war in extreme cases, but is allowed, unlike preemption, for the sake of the invaders. Pillage for its own sake is unlawful. (2.) It is contrary to the spirit of the rules of 1856. The neutral flag covers ene- my’s goods ; how much more ought it to cover its own innocent goods. (3.) It almost reaches the position that paper block- ades are defensible. It says, I will take your wheat from you whether you are bound to a blockaded port or not. The English practice in cases of preemption is to practice of pay a reasonable indemnification and a fair profit on preemption. , . the commodity intercepted, but not to pay the price which could be obtained in the enemy’s ports. In a treaty § 198. BELLIGERENTS AND NEUTRALS. 341 with Sweden of 1803, it was arranged that in seizures of this kind the price of the merchandise should be paid, either as valued in Great Britain or in Sweden, at the option of the proprietor, with a profit of ten per cent, and an indemnity for freight and expenses of detention. In the treaty of 1794, already referred to, between Great Britain and the United States, it is said “that whereas the difficulty of agreeing on the precise cases, in which provisions and other articles of con- traband may be regarded as such, renders it expedient to pro- vide against the inconveniences and misunderstandings which might thence arise, .... whenever any such articles so becom- ing conti’aband according to the existing law of nations shall for that reason be seized, .... the captors, or in their default the government, under whose authority they act, shall pay the full value, .... with a reasonable mercantile profit thereon, to- gether with the freight and also the damages incident to such detention.” (Article xviii.) The expression “ becoming con- traband according to the existing law of nations ” left the question. What the laAv of nations decided, an open one ; if the United States, for instance, denied that certain articles seized as contraband w^ere legally such, they could not yield their opinion, and preemption itself in such cases might be a cause of complaint and even of war. This was an unfortunate half- way admission, which left everything unsettled, and yet jus- tified the other party to the convention in their measures of detention on the seas. § 198. If the contraband articles are clearly intended for the ene- my’s use, especially if they are moi’e in quantity than the ship’s company need, they are subject to confis- contraband cation on being captured, and no freight is paid for them to the transporter. Ancient French ordinances, before the ordinance of 1681, prescribed a much milder course : the value of the contraband articles, at the e.stimate of the admiral or his lieutenant, was to be paid after bringing the ship so freighted into port. Ancient usage, in general, made the ship also liable to confiscation : the commercial treaty of Utrecht, 342 OF THE KELATIONS BETWEEN §198. in 1713, points at this where it says, that “the ship itself, as- Avell as the other goods found therein, are to he esteemed free, neitlier may they be detained on pretense of their being, as it were, infected by the prohibited goods, much less shall they be confiscated as lawful prize.” The modern ride, pretty uniformly acknowledged, seems to be, that the ship and the goods that are not contraband go free, except where one or both pertain to the owner of the contraband articles, or where false papers show a privity in carrying them.^ The justice of confiscating the ship in both these cases is plain enough, for there is an evident intention of violating, by means of the vessel, the duties of neutrals. Whether, when the rest of the cargo belongs to the same owner, it should be thus severely dealt with, may be fairly doubted. Bynkershoek ( “ Qiisest. .1. P.,” i. 12) decided in favor of confiscation, “ ob continentiam delicti ; ” and Sir William Scott gives as his reason for a sim- ilar opinion, “ that where a man is concerned in an illegal transaction, the wdiole of his property involved in that transac- tion is liable to confiscation.” The penalty ceases after the objectionable goods have been conveyed to their port. In two other cases the confiscation of the ship has some.- times been enforced, — when the contraband goods makeup three quarters of the value of the cargo, and when the owner of the vessel is bound, by special treaties of his government with that of the captor, to abstain from a traffic of this de- scrijdion. Tlie first resolves itself into a rule of evidence in regard to the complicity of the ship, and needs not to be made a distinct case ; the other assumes, Avithout reason, that the OAvner of the vessel must have a knoAvledge of the cargo, and is not generally acknowledged. In regard to the duration of the liability to compensation, the same authority gives the rule (case of The Imina, Ha’bnity"to 3 Rob. Rep., 168) : “ That the articles must be penalty. -^akeu hi delicto, in the actual prosecution of a voy- age to an enemy’s port. Under the present understanding 1 Of course where the sliip is .fitted for the naval warfare of the enemy, it is liable to confiscation on another ground. §,198. BELLIGERENTS AND NEUTRALS. 343 of the law of nations you cannot take the proceeds in the re- turn voyage. From the moment of quitting a hostile port, indeed, the offense is complete,” etc. In a subsequent case the liability to capture of a ship carrying contraband articles with the help of false papers^ was held to continue until the end of the return voyage, as in the parallel case of breach of blockade according to English usage. A vessel from Balti- more, after carrying contraband to the Isle of France with false papers, performed a number of different voyages, in which she continued’ to be occupied from 1804 to 1807, and on sailing back from Batavia to Baltimore, was captured by a British cruiser. She was condemned, together with the cargo belonging to her owner, and Sir W. Grant pronounced the principle to be that, “ if a vessel carried contraband on the outward voyage, she is liable to condemnation on the return voyage. It is by no means necessary that the cargo should have been purchased by the proceeds of the contraband.” The two decisions are at variance, unless the vessel’s guilt sticks longer than that of the contraband articles does, or unless false papers extend it. (Case of The Margaret^ 1 Ac- ton’s Rep., 334, et seqf Here Ave may add that, by an English decision, a neutral Danish A’essel, stopping at the Cape of Good Hope on her way to a Danish settlement, Tranquebar, Avitli both contraband and innocent articles on board, the latter of AA'hit h she intended to sell at the Cape, as Avell as to deli\'er letters to Dutch magis- trates, AA-as exempted from penalty on the ground that mean- Avhile the Cape Colony had surrendered to the English, and Avas noAv in their possession. (Case of the Trende Sostre^ 6 Rob. Rep., 391, note.) Among treaties modifying the penalty in cases of contra- band, that betAveen the United States and Prussia, AA'hicli Franklin negotiated in 1785 (comp. § 128), urin^gSe'^' and the article of which relating to tliis subject was inserted in the neAV treaty of 1799, deserves especial mention. It is there provided, Avith regard to military stores, that the A'essels having them on board may be detained “ for such length 344 OF THE RELATIONS BETWEEN § 198. of time as the captors may think necessary to prevent the in- convenience or damage that might ensue from tlieir proceed- ing, paying, however, a reasonable compensation for the loss such arrest shall occasion to the proprietors ; and it shall fur- ther be allowed to use in the service of the captors the whole, or any part of the military stores so detained, paying the owners the full value of the same, to be ascertained by the current price at the place of its destination. But in a case supposed of a vessel stopped for articles of contraband, if the master of the vessel stopped will deliver out the goods sup- posed to be of a contraband nature he shall be admitted to do it, and the vessel shall not in that case be carried into any port, nor further detained, but shall be allowed to proceed on her voyage.” ^ §199. If the obligations of neutrality forbid the conveyance of con- traband goods to the enemy, they also forbid the neu- vcyance of tral to convey to him ships, whether of war or of trocTpa and ti'anspoi’t, witli thcii’ crews, and still more to forward despatches, ti oops Olid his despatches. These have sometimes been called contraband articles, which name a treaty of Eng- land with Sweden in 1691 expressly gives to soldiers together with horses and ships of war and of convoy They have been called, again, “ contraband par accident.” But in truth, as Heffter remarks, they are something more than contraband, as connecting the neutral more closely with the enemy. A con- traband trade may be only a continuation of one which was legitimate in peace, but it will rarely happen that a neutral undertakes in time of peace to send troops of war to another nation, and the carrying of hostile despatches implies a state of war. These two kinds of transport deserve a more extended discussion. 1 This treaty was terminable in twelve years, or afterwards on twelve months’ notification. A similar provision in the treaty of 1800 with France expired in 1808. Nine like treaties with Spanish-American republics are still in force. If the goods are such in quantity that they can be handed over the neutral can go on his way. Otherwise the ship must go to the nearest safe port. 2 Marquardsen, (fe)' Trent-Fall, p. 51. § 199. BELLIGEEENTS AND NEUTEALS. 345 1. The conveyance of troops for a belligerent has long been regarded as Inghly criminal. In the commercial treaty of Utrecht of 1713 (Dumont, viii., i., 345), between France and Great Britain, it is provided that the liberty granted to goods on a free or neutral ship “shall he extended to persons sailing on the same, in such wise that, though they be enemies of one or both the pai’ties, they shall not be taken froi%the free ship, unless they be military persons, actually in the service of the enemy.” Many modern treaties contain the same exception from the protection of the neutral flag and in nearly the same Avords; as for instance those of 1785 and 1800 between France and the United States, and those of the latter Avith Guatemala, San Sahauloi-, and Peru.^ Our formula of exception is “ un- less they are officers or soldiers, and in the actual service of the enemy.” As for the number of persons of this sort, so transported, AA'hich Avill invoh'e a vessel in guilt and lead to its condemnation, it may perhaps be said that a soldier or tAA’o, like a package or tAvo of contraband articles, might be over- looked; but it is held that to forward o.flicers, especially of high rank, or oven a single officer, aa'ouIcI subject the neutral A^essel to confiscation. (^TJie Orozembo, Robinson’s Rep., A’i., 434, Phillim., iii., § 272.) A modern case shoAvs the rigor of the English courts in regard to such transportation. The Bremen ship Greta was condemned in 1855, during the Cri- mean Avar, by a piize court at Hong Kong, for carrying two hundred and seA^enty shipAArecked Russian officers and seamen from a Japanese to a Russian harbor, — although had this con- duct been dictated by mere humanity condemnation could not have taken place.^ 2. No rule of international laAV, forbidding the conveyance of hostile despatches, can be produced, of an earlier date than the first years of the present centiu’y. Sir William Scott (Lord Stowell) seems to haA'e struck out this rule, as a deduction, and Ave may say, as a fair deduction, from the general obliga- tion of neutrality. The general doctrine of the English courts 1 JIarqiiardsen, ii. s. p. 61. 2 Ibid., p. 39. 346 OF THE RELATIONS BETWEEN § 199. is this. Despatches are official communications of official per- sons on the public affairs of government. Letters of such persons concerning their own private affairs, and letters writ- ten Ly unofficial persons, are not despatches. Communications from a hostile government to one of its consuls in a neutral country, Unless proved to be of a hostile nature, and despatches of an enemy^ ambassador resident in a neutral country, are excepted from the rule, on the ground that they relate to intercourse between the hostile state and a neutral, which is lawful, and which the other belligerent may not obstruct. Tin* comparative importance of the despatches, if within the rule, is immaterial. In order to make the carrying of enemy’s despatches an offense, the guilt of the master must be established. If the despatches are put on board by fraud against him, no pen- alty is incurred by the ship. If he sails from a hostile port, and especially if the letters are addressed to persons in a hos- tile country, stronger proof is needed that he is not privy to a guilty transaction than if the voyage began in a neutral country, and was to end at a neutral or open port. If the shijimaster is found guilty of convejing hostile de- spatches, the ship is liable to condemnation, and the cargo is confiscable also, both “ ob continentiam delicti,” and because the agent of the cargo is guilty. But if the master is not such an agent, his guilt will not extend beyond the vessel. This rule, in its general form, if not in its harsher features, may be said to have passed into the law of nations. Not only the declarations of England and France, made in the spring of 1854 (§ 190, note), but the contemporaneous ones of Sweden and Prussia sanction it, and the government of the United States m one instance has accepted it as a part of the law of nations. It is received as such by text-writers of va- rious nationalities, by Wildman and Phillimore, by Wheaton, by Heffter, Marquardsen, and other German writers, by Or- tolan and Hautefeuille. The last named publicist gives a modification of the rule, which, though of private authority, deserves serious attention. Despatches can be transported, § 199. BELLIGERENTS AND NEUTRALS. 347 says lie, from one neutral port to anotlier, from a neutral to a belligerent, or from a belligerent to a neiitr.il, or finally from one belligerent port to another. In the three first cases the conveyance is ahvays innocent. In the last it is guilty only Avhen the vessel is chartered for the purpose of carrying the despatches ; but when the master of a packet boat or a chance vessel takes despatches together with other mail matter accord- ing to usage, he is doing what is quite innocent, and is not bound to ascertain the character of the letters which are put on board his vessel. Whatever may be thought of this, it may be seriously doubted whether a neutral ship, conveying mails according to usage or the law of its country, cun be justly treated as guilty for so doing. The analogy from arti- cles contraband of war here loses its force. When a war breaks out, a captain ought to know what articles he has on board, but how can he know the contents of mailed letters ? The case of the Trent, in which this and several other prin- ciples of international law were involved, may here the receive a brief notice. This vessel, sailing from one neutral port to another on its usual route as a packet ship, was overhauled by an American captain, and four persons were ex- tracted from it on the high seas, under the pretext that they were ambassadors, and bearers of despatches from the Confed- erate government, so called, to its agents in Europe. The ves- sel itself was allowed to pursue its way, by waiver of right as the officer who made the detention thought, but no despatches were found. On this transaction we may remark, (1.) That there is no process known to international law by which a na- tion may extract from a neutral ship on the high sea a hostile ambassador, a traitor, or any criminal whatsoever. Nor can any neuti’al ship be brought in for adjudication on account of hav- ing such passengers on board. (2.) If there had been hostile despatches found on board, the ship might have been captured and taken into poi t ; and when it had entered our waters, these four men, 'being citizens chai'ged Avith ti’eason, Avere amenable to our laAvs. But there appears to have been no valid pretext for seizing the vessel. It is simply absurd to say 348 OF THE RELATIONS BETWEEN § 199. tliat these men were living despatches. (3.) The character of the vessel us a pacivet ship, conveying mails and passengers from one neutral port to another, almost precluded the pos- sibility of guilt. Even if hostile military persons had been found on board, it might be a question whether their presence would involve the ship in guilt, as they were going from a neutral country and to a neutral country. (4.) It ill became the tlnited States, — a nation which had ever insisted stren- uously upon neutral rights, — to take a step more like the former Hritish practice of extracting seamen out of neutral vessels upon the high seas, than like any modern precedent in the conduct of civilized nations, and that too when she had pro- tested against this procedure on the part of Great Britain and made it a ground of war. As for the rest, this affair of the Trent has been of use to the world, by committing Great Britain to the side of neutral rights upon the seas,^ § 200. Certain kinds of trade, as the coasting and colonial, have Traiie olosca hecii by the policy of most nations confined to na- but'oil^ned tioiRil vessels in time of peace ; and neutrals have iu war. Peen allowed to participate in them only when war I’endered the usual mode of conveyance unsafe. It would ap- pear, that to make such trade lawful, licenses were granted to particular vessels, and the belligerent captor could, with justice take the ground, that the vessel under license had identified 1 For tlie snlijocts cmlirnced witliin tliis .section see Marqnardscn (Prof, at Er- lan.-jpii) Thr Trent-VoU, Erhuincn, 1 862. — For tlio conveyance of troops and of (lespatclies most of tlip modern text writers may lie consulted, as AYliealon, iv.,3, § 25. Ileffrer. § I.-)? h : Ortolan, il., 21.3 ; Wildnmn, ii., 2.34-244 ; Phillimore, iii., § 27.3. 'I'he cases, wliieli have ])rincip:dly determined tlie law in the niatier of dc'patidies, are those of tlie. Atahuda, 6 Roliinson’s Rep. 440; Cdi'ulinii, iliid.,4r)5; and nti/inl. Edwards’ Hep. 228. The Atahxnta bronnlit despatches from ihe Frencli g-overnor of the I.sle of France to the French Minister of IMarine, and was con- demned ; the Ciiroliiia, from tlio Frencii ambassador in the Lnited States, a neu- tral conntrv, to his lionie government, and was released. I* or tlie conf.-e which the United States should have t iken from tlie first news of the Trent affair, in cousisleney with our past principles, comjjare Mr. Sumner’s .speech in the Senate of the United States, in January, 1862. §201. BELLIGERENTS AND NEUTRALS. 349 itself with the enemy. In the Seven Years’ War, declared in 1756, the British government and courts maintained that this kind of trade was prohibited by the law of nations : hence the principle, that a neutral could not lawfully engage, during war, in a certain trade with the enemy, from which he had been shut out in peace, is called the rule of 1756. The rule was protested against in 1780 by the first armed neutrality, so far as coasting trade was concerned; but in 1793 and onwards was enforced by the British government ; although, now, the trade was no longer carried on by -special license, but was opened to all neutral vessels. The grounds on which the rule stood were, that the neutral interfered to save one of the bel- ligerents from the state of distress to which the arms of his foe had reduced him, and thus identified himself with him. The neutral states have never allowed that the rule forms a part of the international code. “ Its practical importance,” Dr. Whea- ton observes, “ will probably hereafter be much diminished by the revolution which has taken place in the colonial sys- tem of Europe.” ^ § 201. The declaration of Paris, of 1856, by which the neutral flag covers enemies’ goods, destroyed the force of the rule of 1756, for the new rule protects neutral trade in (oionial innocent articles between two hostile ports, whether in neutrai-s such trade had been opened to neutrals in time of peace or not. The rule is expressed in the most general terms. But, although this rule is obsolete, and has gone into history for the most part; the United States, not being a party to the above-mentioned declaration, may yet be under the opera- tion of the old British law in regard to coasting and colonial trade. Here two questions may be asked, the one touching the lawfulness of coasting trade proper, the other touching the conveyance by neutrals of their goods, brought out of foreign ports, from one port of the enemy to another. Our govern- ment has contended for the right of neutrals to engage in both descriptions of trade, if we are not in an error, while some of 1 Wheaton, Elements, iv., 3, § 27, at the end. 350 OF THE RELATIONS BETWEEN §201. oiu- publicists hold the first to be reasonably forbidden, the other to be allo\Yed. Judge Story says (“ Life and Letters,"’ i., 285-289) that, in his private opinion, “ the coasting trade of nations, in its strictest character, is so exclusively a national trade, that neutrals can never be permitted to engage in it during war rvithout being affected with the penalty of confis- cation. The British have unjustly extended the doctrine to cases where a neutral has traded between ports of the enemy with a cargo taken in at a neutral country.” He is “ as clearly satisfied that the colonial trade between the mother- country and the colony, where that trade is thrown open merely in war, is liable, in most instances, to the same penalty. But the British have extended their doctrine to all intercourse Avith the colonies, even from or to a neutral countiy, and herein, it seems [to him], they have abused the rule.” There seems to be reason for such a difference. To ojien coasting trade to neutrals is a confession of inability to carry on that branch of trade on account of apprehensions from the enemy’s force, and an invitation to neutrals to afford relief from the pressure of war. It is to adopt a new kind of vessels, on the ground that they cannot be captured. The belligerent surely has the right to say that his attempts to injure his enemy shall not be par- alyzed in this manner. But he has no right to forbid the neutral to carry his own goods from hostile |)ort to hostile port, AAdien he might have done it before. Every right of inno- cent trade, then, enjoyed by the neutral in peace, should be allowed after the breaking out of the Avar ; but neAv rights, given to them on account of the Avar, may be disregarded by the belligerent as injuring his interests. llautefeuille remarks, on the other side, that the soA^ereign who can interdict can also permit a certain Ivind of commerce. But this is begging the question. Can he, by such privileges, restrain his enemy from annoying him — privileges Avbich are nothing but taking the neutral trader into a kind of part- nership ? Suppose that he hired Avar-A^essels from a neutral sovereign, Avould that exempt them from capture ? Most other continental Avriters have condemned the rule of 1756, as Or- § 202. BELLIGERENTS AND NEUTRALS. 351 toLan, Kaltenborn, Heffter, in a qualified way, and Gessner. Some treaties have allowed coasting trade to neutrals between enemies’ ports in war, as that between England and Holland of 1675; that between Holland and Spain of 1676, 1679; the Treaty of Utrecht ; that of 1715 between Holland and Rus- sia; that of 1725 between the German Empire and Spain; that of 1795 between Spain and the United States. In some few treaties, again, such trade is prohibited, as in that of 1691 between England and Denmark ; that of 1762 between Prussia and Sweden ; that of 1801 between Russia and England, the latter against the principle of the armed neutralities. See Phillimore, iii., §§ 215-225, Hautefeuille, ii., pp. 53-68, Gess- ner, 266-277, to the latter of whom I am indebted for much of the matter of this paragraph, and Kent, i., pp. 82-85. The latter, speaking of our protests against the rule, thinks that if we should become a great power, and have a maritime enemy which should open its commerce to neutrals at the outbreak of war, we should attach more Aveight to the arguments in favor of the rule of 1756 than aa'o haA^e done. It is to be hoped that, b}’- acceding to the declaration of 1856, or some other, allowing larger liberties of trade, we shall help to con- sign the old rule to oblivion. § 202. The word blockade properly denotes obstructing the pas- sage into or from a place on either element, but is -11 1-1 • Blockade. more especially applied to naval forces preventing communication by Avater. Unlike siege it implies no intention to get possession of the blockaded place. With blockades by land or ordinary sieges neutrals have usually little to do. A blockade is not confined to a seaport, but may Inwe effect on a roadstead or portion of a coast, or the month of a riv.er. But if the river is a patliAA^ay to interior cun' be neutral territories, the passage on the stream of A’es- sels destined for neutral soil cannot be impeded. It has been asserted, that no place could be put under blockade, unless 852 OF THE EELATIONS BETWEEN § 202. There Mliy is a breach of blockailc unlawful. to aid it were fortified; but the law of nations knows no such lim- itation.^ is a ejeneral agreement that it is unlawful for a neu- tral vessel knowingly to attempt to break a block- ade, Avhether by issuing from or entering the block- aded place.^ Such an act, especially of ingress, tends one of tlie belligerents in the most direct manner against the designs of the other, and is therefore a great de- parture from the line of neutrality. And a similar act on land would involve the loss of the most innocent articles in- tended for a besieged town. ]\I. Ortolan places the obligation to respect a blockade on the ground that there is an actual substitution of sovereignty, that is, that one belligerent has possession by occupancy of the waters of the other. But this is a formal way of defending the right of blockade, and may be found fault Avith, perhaps, for the reason that sovereignty over Avater along a coast is merely an incident to soA^ereignty on the adjoining land, AAdiich the blockader has not yet ac- quii’ed. The true ground of the right is simply this, that the belligerent has a right to carry on a siege ; and that his act of commencing such a siege places neutrals under an obliga- tion not to interfere Avith his plans. If the sea Avere a com- mou jiatliAvay to the very coast this right Avould still subsist. Blockades may be considered in I'egard to their objective validity, to the evidence Avhich the neutral ought to have of the fact, or their subjective validity, to the conduct Avhich con- stitutes a breach of blockade and its penalties, and to the his- tory of attempts to stretch the notion of blockade beyond the limits prescribed by international laAV. A valid or laAvful blockade requires the actual presence of a sufficient force of the enemy’s A-essels before a cer- vaiiablocui tain place on the coast. By presence is intended general presence, or presence so far as the elements 1 By Lucchesi-Piilli, p. 180 of tlie Frencli translation of the Italian work, cited 1)3' Ortolan, ii., 299. 2 A neutral ship, overtaken while in ])ort b}' a blockade, is generally allowed, if loaded and ready to sail, to go out with her cargo, or if not loaded, to go out in ballast. § 202. BELLIGERENTS AND NEUTRALS. 353 do not interfere, so that the dispersion for a time of the block- ading squadron by a storm is not held to amount to its being broken up. For this theie must be abandonment of the un- dertaking. What a sufficient force is, cannot be determined with logical rigor. It may be said to be such a force as will involve a vessel attempting to pass the line of blockade in considerable danger of being taken. Treaties have sometimes determined the amount of force necessary to make a blockade valid. Thus, a treaty of 1742 between France and Denmark declares tliat the entry of a port to be blockaded must be closed by at least two vessels, or by a battery of cannons placed on the coast, in such sort that vessels cannot get in without manifest danger. A treaty of 1753 between Holland, and the Two Sicilies requires the presence of at least six vessels of war, at the distance of a little more than cannon-shot from the place, or the existence of batteries raised on the coast, such that entrance cannot be effected without passing under the besieger’s guns. A treaty of 1818 between Russia and Denmark repeats in substance the provisions of the first named treaty. It results from this, that all paper or cabinet blockades, whether declarations of an inteiitipn to blockade a or ])lace Avithout sending an adequate force thither, or t’loXiLs the mere formality of pronouncing a tract of coast under blockade, are an undue stretch of belligerent right, and of* no validity whatever. Such grievous offenses against the rights of neutrals have come, it is to be hoped, to a perpetual end, since the nations Avhich offended most signally in this re- spect Avere parties to the declaration accompanjdng the peace of Paris (April 16, 1856), that “ blockades in order to be binding, must be effectual, that is to say, maintained by a force sufficient in reality to prevent access to the coast of the enemy.” (§ 190.) A question arises here in regard to the jneaning of the Avords (in the original of the declaration) effect fs" and “ une force snffisante pour interdire reelment Vaccesf etc. Dr. Lushington remarked that the maintenance of a blockade 23 354 OF THE RELATIONS BETWEEN I 202. must always be a question of degree, — of the degree of dan- ger of ships going into or leaving a blockaded port. No force could bar the entrance to an absolute certainty ; vessels may get in or get out during the night or fogs or violent winds, or occasional absence ; it is most difficult to judge from num- bers alone. And he adds that in no case a blockade was held to be void Avhen the blockading force was on or near the place of entry or exit. This opinion was given before the declara- tion of 1 856. Should “ effective ” have any more stringent meaning now. Probably all would concur in the opinion that the constant presence of a squadron except when gales ren- dered its position dangerous, constant danger of attempts to make an unlawful entrance or exit, and such a nearness of blockading vessels to one another as Avould render the capture or destruction of vessels seeking to escape from a port highly probable in the judgment of the commanding officer, are some of the safest criteria.^ The opinion, then, as to the ef- fectiveness of a blockade has not much changed since 1856. of the exis- tence of a blockade. § 203. As a blockade arises from some positive act and not from a 2 Evidence nici’e intention, as it is a tempoi'ary, and, it may be, an often-repeated measure, and as a neutral is, in general, innocent in endeavoring to enter any port in his friend’s territory, it is manifest that in order to become guilty, he must have had the means of obtaining due notice of the new state of things which a blockade has occasioned. The best notice is, when a vessel, approaching a poit, or What i.sduc attempting to enter it, is warned off by a ship per- notice? taining to the blockading squadron. In many special treaties this is required. In that of 1794, between Great Britain and the United States, it is provided, that whereas vessels frequently “ sail for a port or place belonging to an enemy without knowing that the same is either besieged, blockaded, or invested, it is agreed that every vessel so cir- cumstanced may be turned away from such port or place; ^ Coinjj. Twiss, Law of Nations in War, ed. 2., 199. § 203. BELLIGEKENTS AND NEUTRALS. 355 but she shall not be detained, nor her cargo, if not contra- band, be confiscated, unless, after notice, she shall again at- tempt to enter.” Similar stipulations exist in treaties between France and tlie governments of Spanish America.^ Justice to neutrals requires that their ships should not be subject to the risk and delays of a voyage to a port, Avhere they may be debarred admission. The universal practice, is, therefore, to communicate the news of a blockade to neutral governments, upon whom lies the I’esponsibility of making it known to those who are engaged in commerce. And if such notice be given, similar notice must be given of the discontin- uance of a blockade, as far as possible. For a wrong is done to neutrals, if they are left to find out as they can that a block- ade is terminated, since a long time may elapse before it will be considered safe to return to the old channel of commerce. There is a difference of practice in regard to the amount of notification which neutrals may claim. The French hold, for the most part, that both a notice from the government of the belligerent, and notice from a blockading vessel, at or near the port, are necessary, so that a vessel will not incur guilt by coming to a port in order to ascertain whether a blockade, made known in the diplomatic way, is still kept up. The English authorities make two kinds of blockade, one a block- ade de facto^ which begins and ends with the fact, and which will involve no vessel attempting to enter a harbor in guilt, unless previously warned off ; and the other a blockade, by notification, accompanied by the fact. In the latter case, the presumption is that the blockade continues until notice to the contrary is given by the blockading government. Hence ignorance of the existence of the blockade cannot ordinarily be plead as an excuse for visiting the blockaded port, but the voyage itself is evidence of an intention to do an unlawful act. This seems to be quite reasonable : notice to the neutral state must be regarded as notice to all shippers who are its subjects, ' Wheaton, Elements, iv., 3, § 28, p. 544; Ortolan, ii., 305 sei;. — Treaties of Trance with Brazil (1828), Bolivia (1834), Texas (1839), Venezuela (1843), Ecua- dor (1848), and others more recent, contain such provisions. 356 OF THE RELATIONS BETWEEN § 203. and if tlie rule of evidence presses hard in a few cases, the blockading government is not in fault. But the notice must be given to all neutral powers in oi'der to reach their subjects : general notoriety, as by news travelling from one country to another, is not sufficient notice.^ Equity requires that the neutral should have had time to receive notice of a blockade. Hence, a ship from a distance, as from across the Atlantic, may attempt to enter a port actu- ally invested, without exposing itself to penalties. It cannot be said in justice, that a shrewd suspicion of a blockade is enough to make a vessel guilty in sailing for a certain port, for a known or a know able fact must precede guilt. On the other hand, a fair possibility derived from tlie expectation of peace, or from other sources, that a blockade is raised, may justify a vessel in sailing contingently for the port in question with the intention of inquiring at the proper place into the fact. A blockade ceases, whenever the vessels which constitute it 3 When is a withdrawn, whether with or without compulsion di'.sc^ra-^*^ from the enemy, so that the undertaking is for the tinned? time, at least, abandoned. If the vessels return after leaving their stations, the commencement of a new blockade requires the same notification as before. Common fame in regar^to the breaking up of a blockade will justify a neutral in sailing for the blockaded port, although, as we have seen, it is not sufficient notice to him : he ought to have more evi- dence of an interference with the normal state of things than he needs to have of a return to it. § 204. All the modern French writers on the rights of neutrals upon the sea, except Hautefeuille, hold that the two kinds of notice, tliat from the government and tliat from the blockading squadron, are necessary. (Or- tolan, ii., 305 et seq., ed. 2; Cauch}!,. ii., 421 ; Pistoye et Duverdy, i., 372.) Hautefeuille regards the special notili- 1 Comp. Wheaton, iv., 3, § 28 ; Philliniore, iii., 335 ; Ortolan, ii., 301 et seq. French and Fngli.'ih practice as to notifica- tion contin- ued. §204. BELLIGERENTS AND NEUTRALS. 357 cation as essential in all cases, but does not hold the diplomatic notification to be necessary, (ii., 226, ed. 2.) The French government carries out the same views. In 1838, when the jMexican blockade was in progress. Count Mole, then IMinister of Foreign Affairs, wrote to his colleague, the IMinister of IMarine, in regard to the conduct of the commander of the fleet in the Mexican seas, as follows: “M. N. confounds here two things very distinct, the diplomatic notification which ought to he made of the blockade to the nentral powers, and the information which the commanders of the forces, employed to maintain it, are ahvays bound to give to such ships as pre- sent themselves at the blockaded places. He seems to think that going through with the first formality dispenses necessa- rily Avith the second, which Avould thereafter become super- fluous. Such a manner of proceeding is contrary not only to the ordinary principles of maritime laAV, but also to instruc- tions emanating from your department, and to the communica- tions which Avere made to the Government of the United States and to the foreign consuls at Vera Cruz at the time [of commencing the blockade]. I Avill not recall here the reasons ^vhy, independently of the official and diplomatic no- tice of a blockade, every ship shoAving itself before the block- aded port ought to receive from the commander of the block- ading squadron the Avarning,” etc. In all the treaties of commerce made betAveen France and the South American republics a clause is inserted to the effect that no A'essel of commerce belonging to citizens of either of the treaty-making poAvers shall be seized, captured, or condemned, Avithout having received a preA’ious notice of the existence or continuation of the blockade from the blockading forces or from some A'essel forming a part of the blockading division or squadron ; and particular rules folloAV in regard to the vise of the commander giA’ing the notice, Avhich is to be put upon the ship’s register, and for AAdiich the captain of the vessel over- hauled and A'isited shall give a receipt. (Ortolan, u. s.) The same rule has been folloAved by Denmark, and gener- ally by the governments of continental Europe. It appears in 358 OF THE RELATIONS BETWEEN § 204. a large number of treaties. The armed neutrality of 1800 pro- claimed it as one of their principles of commercial liberty, that no vessel can be regarded as having broken blockade until, after being informed by an officer of the blockading vessel con- cerning the condition of the port, it attempted to enter by fraud or stratagem. (Martens, “ Rec.,” vii., 176.) The weight of opinion, also, on the continent is upon the same side. (Comp. Gessner, u. s., 179-192.) In Jay’s treaty with England (1794), and in a number of treaties with the South American States, the United States have adopted the provisions given in the text. But the words “ so circumstanced ” seem to show tliat the provision applies only to cases wlnu-e there is ignorance of the blockade of a par- ticular port. It cannot therefore be cited as agreeing with French practice, for which purpose Ortolan (ii., 308) and Gessner (p. 204) use it. Nor did Mr. Lincoln, perhaps, mean anything else in his proclamation of blockade, where he says, in quite general terms, Avhich would seem to announce a rule not confined to the beginning of the Avar, that a v’essel ap- proaching or attempting to leave any of the blockaded ports “Avill be duly Avarued by the commander of one of the block- ading A'essels, Avho Avill endorse on her register the fact and date of such Avaruiug,” after Avhich, on trying to do the foi'bid- den act, she Avill be captured, and sent into some port for ad- judication. At least the government did not adhere to the rule through the Avar, and as early as in July, 1861, a vessel ignorant of the Avar Avas captured before attempting to enter a port. In fact, the doctrine of continuous voyages could hardly have been applied, if such AAmrniug had been thought neces- sary- The continental doctrine is compelled to break down in re- gard to those blockades in distant parts of the Avorld, Avhich a commander of a squadron, as the representative of his goA'ern- ment, is alloAA^ed to impose. They can occur before any diplo- matic notification, and a vessel thus AA^arned is still a laAvful prize. This doctrine appears to the Avriter to he destitute of a § 20-t. BELLIGERENTS AND NEUTRALS. 359 rational foundation. Why should two notifications he judged necessary? One can see the need of a “diplomatic” notifica- tion. It saves the neutral merchant from the risk and loss of an adventure which the war will prevent him from carrying out according to his intentions. And the notification at the port is necessary as a supplemental warning, when there has not been time for the ships of neutrals on the sea or in distant ports to become aware of the existence of a blockade. But apart from this exceptional case, and from the case that the blockade has been raised, to give notice to a vessel coming to a port to break a blockade is like giving notice to a burglar trying to break into a house. It is a highly criminal jiroceed- ing to try to break a blockade. It is becoming a party to a war. A person trying to steal into an invested town Avith pro- visions Avould be summarily dealt Avith. Why this great com- passion for neutrals engaged in a AAwong traffic ? Especially does such trade require to be the more seA'erely treated, as long as neutral nations themselves throAv the gates open, and make no movement to hinder this kind of commerce. For our part, AA'hile Ave could wish to have all private ships and goods engaged in innocent trade exempt from seizure, we Avould Avish to have illicit trade subject to the heavier penalties, eA'en to the punishment of the crew, to have the ship liable in cases of ordinary contraband, and to have neiitral states stop such ad- A'entures AATthin their OAvn ports. One Avord in regard to the place of the commencement aiid the duration of the liability to be seized for breaches of block- ade. The continental doctrine necessarily iiiA'olves this rule, — that no ship is liable until it reaches the place Avliere the blockading ships are stationed. The punishable fact is not the sailing across a tract of sea Avith an intention to do an evil deed, but t\\Q fact that the vessel tries to enter the blockaded harbor. It is evident that this formal rule increases tlie temptation to engage in such enterprises, Avhile the other rule may bear hard, as far as evidence is concerned, upon neutral traders. On the other hand the continental rule, if Ave mis- take not, is that the vessel on her return voyage is not liable, 360 OF THE RELATIONS BETWEEN § 204. although it is admitted that a vessel breaking blockade and running out again may be chased to her own coasts or to any other neutral port. Or, in other words, the fact here too must be gin at the blockaded port. It is not easy to see a sufficient reason for this rule on the score of the principle. § 205. A vessel violates the law of blockade by some positive act ^ p ^ of entering or quitting, or by showing a clear and for breach specdy intention to enter a blockaded port. A re- of blockade. i ’''c-i mote intention entertained at the outset of the voy- age, for instance, might be abandoned, and the seizure of such a vessel on the high seas would be unlawful. It must be at or near the harbor, or its intention must be manifest, in order to cause it to be liable to penalty. The penalty is confisca- tion, and it falls first on the ship as the immediate agent in the crime. The cargo shares the guilt, unless the owners can re- move it by direct evidence. The presumption is that they knew the destination of the vessel, for the voyage was under- taken on account of the freight. If ship and cargo are owned by the same persons, the cargo is confiscated of course. The penalty for a breach of blockade is held to continue upon a vessel until the end of her return voyage, and liability to to liavo ceasod, if she were captured after the actual penalty. cliscoiitiniiance of the blockade. The reasons for the former rule may be that the voyage out and back is fairly looked on as one transaction, the return freight being the mo- tive in part for the act, and that time ought to be allowed to the blockading vessels to pursue and cajiture the offender. The reason for the latter is, that the occasion for inllicting the penalty ceased with the blockade. Besides this penalty on cargo and vessel, the older text- writers teach that punishment may be visited upon the direct authors of a breach of blockade. ^ Even De Martens (§ 320) declares that corporal pains, by the positive law of nations and by natural justice, may be meted out to those who are guilty 1 Grotius, iii., 1, § 5, 3; Bynkersh., Queest. J. P., i., 11 ; Vattel, iii., 7, § 117. § 206. BELLIGERENTS AND NEUTRALS. 361 of sucla breach. But the custom of nations, if it ever allowed of such severities, has long ceased to sanction them. § 206. The natural inclination of belligerents to stretch their rights at sea at the expense of neutrals, appears in attempts 5 Attempts to enlarge the extent of blockades over a tract of [he docuine coast without a sufficient force ; and at no time so blockade, much as at the end of the eighteenth and beginning of the nineteenth century. In the war of France and Spain with Great Britain during the American revolution, those nations extended the notion of blockade unduly,^ which led to the declaration of Russia in 1780, — afterwards made one of the principles of both the armed neutralities, — that the blockade of a port can exist only, “ where, through the arrangements of the power which attacks a port by means of vessels stationed there and sufficiently near, there is an evident danger in en- tering.” The far more important aggressions on neutral rights be- tween the year 1806 and 1812, are too closely connected with the affairs of our own country to be passed over in silence. These aggressions, under the continental sj^stem, as it was called, may be traced back to measures adopted towards the close of the last century, the object of which Avas to cripple the commerce of England. Thus, in 1796, the ports of the ecclesiastical states and Genoa, and in 1801, those of Naples and Portugal Avere closed to British vessels, by special treaties with the French republic. In 1806, Prussia, then in vassalage to Napoleon, but at peace Avith England, and at the time in temporary Prussian de- possession of Hanover, issued a decree announcing that the ports and rivers of the North Sea Avere closed to Eng- lish shipping, as they had been during the French occupation of Hanover. By A\'ay of retaliation, the British goA"ernment gave notice to neutral poAvers, that the coast from the Elbe to Brest AA'as placed in a state of blockade, of Avhicli coast the 1 Kliiber, § 303. 362 OF THE KELATIONS BETWEEN §206 Berlin decree. jjortion from Ostend to the Seine was to be considererl as under the most I'igorous blorkade, Avhile the remainder was optm to neutral A’essels not laden Avitli enemies’ goods, nor Avith goods contraband of AA-ar, nor guilty of a previous violation of block- ade, nor sent from the ports of enemies of the British govern- ment. This measure led to the Berlin decree of Bonaparte, bearing the date of November 21, 1806. In this decree, is- sued from the capital of subjugated Prussia, after reciting the infractions of international hiAV Avith Avhich Eng- land AAOis chargeable, the Emperor dechu’es the British islands to be under blockade, and all commerce Avith them to be for- bidden, English manufactures to be laAvful prize, and vessels from ports of England or her colonies to be excluded from all ports, and to be liable to confiscation, if they should contra- A'ene the edict by false papers. The Berlin decree “rendered eA'ery neutral A^essel going First Orders Euglisli ports Avitli cargoes of English nierchan- iti Council, pj. Qf Eiiglisli oi’igin, lawfully seizable by French armed vessels.” ^ The British government Avas not sloAV in its retaliation. By an Order in Council, dated January 7, 1807, it Avas declared “ that no A^essel should be permitted to sail from one port to another, both of Avhich ports should belong to or be in the possession of France or her allies, or should be so far under their control, that British vessels might not trade thereat.” And by a second Order in Council, dated November 11, 1807, it Avas declared that, as the previous order ordensin had uot iuduced the enemy to alter his measures, all places of France, her allies and her colonies, as also of states at peace Avith Great Britain and yet excluding her fl;)g, should be under the same restrictions as to commerce, as if they Avere blockaded by British forces. All commerce in the productions of such states w^as pronounced illegal, and all vessels so engaged, Avith their cargoes, if taken, Avere to be ad- judged hiAvful prize. But neutrals might trade Avith the colo- 1 Words of M. Champagny, French minister of foreign relations, October 7, 1807. §2oe. BELLIGEEENTS AND NEUTRALS. 863 Tlies, or even with the ports of states thus under the ban, for goods to be consumed by themselves, provided they either started from or entered into a British port, or sailed directly from the enemies’ colonies to a port of their own state. JNIore- over, as certain neutrals had obtained from the enemy “ certif- icates of origin,” so called, to the effect that the cargoes of their vessels were not of British maniifacture, it was ordered that vessels, carrying such certificates, together with the part of the cargo covereil by them, should he confiscated, as the prize of the captor. A supplement to this order declared that ships sold by the enemy to a neutral would be deemed illegally sold, and be considered lawful prize, Avhile another supplement regulated the manner in Avhich neutrals must carry on their commerce, and prescribed licenses, Avithout AA’hich trade in cer- tain articles aa'ouIcI be held nnlaAA’ful. Against these orders the French Emperor fulminated the Milan decree of December 17, 1807, declaring that evei’Y vessel AAhich submitted to be searched by an English cruiser, or to make a A’oyage to England, or to pay a tax to the English government, had lost the right to its OAvn flag, and had become English property ; that such Amssels fall- ing into the hands of French cruisers, or entering French ports, Avould be regarded as laAvful prize ; and that every ves- sel holding communication Avith Great Britain or with her colonies, if taken, Avould be condemned. These arbitrary extensions of the right of Avar, by Avhich neutral rights AAmre sacrificed to the retaliation of the ^ iVl6£lFUrGS of belligerents, Avere calculated to grind to pieces the the united few remaining neutral powers. The United States, being the principal state in this condition, made strong com- plaints, the disregard of Avhich led to more positiAm measures. In December, 1807, an embargo Avas laid on commercial ves- sels in the ports of the United States, and in ]\Iarch, 1809, was passed an act prohibiting intercourse Avith France and England, until their restrictions on neutral commerce should be remoAmd; Avhich act AAms to continue in force towards either country, until it should revoke its obnoxious decrees. 364 OF THE RELATIONS BETWEEN § 206. Tliis led to some relaxation on tlie part of Great Britain. British Or- Order in council of April 20, 1809, the ports ooundi of Holland, France, and Northern Italy, were to be April, 1309. plficed under blockade, while the. I'est of the coast, embraced under previous orders, was opened to neutral com- merce. Napoleon, as yet, however, relaxed his system of measures in no degree. In 1810, he ordered all British manu- factures found in France to be burnt, and the same regulation extended to the states under French supremacy. Tliis would seem to show that the prohibition of trade with England was not rigidly enforced, wdiich was owing in part to the deficiency of the French naval force, and in part to the great demand for British manufactures and the venality of revenue officers. On the other hand, the English, being masters of the sen, were able to make their orders in council good against neutral com- merce. It would seem that there was an understanding be- tween the French government and our own, that the Berlin decree should not be put into force against our vessels. Snell continued to be the state of things until 1812, when the French government annulled its obnoxious decrees, and the British, upon being made acquainted with the fact, re- scinded their retaliatory orders, as far as concerned American goods on American vessels. This took jolace June the 23d, — not in time to prevent the war with Great Britain, which the United States had already begun in the same month, and a principal pretext for which was these same Orders in Council. Doctrine of continuous Voyages. § 207. The doctrine of continued or continuous voyages, -which Sir W. Scott, afterwards Lord Stowell, originated, de- serves to be noticed, and may be noticed here, al- though it first arose in reference to colonial trade with another country, carried on by neutrals. As the English courts condemned such trade, the neutrals in the first part of this century, especially shippers and captains belonging to the United States, tried to evade the rule by stojiping at a neutral port and seeming to pay duties, and then, perhaps, after land- § 207. BELLIGERENTS AND NEUTRALS. 365 insr and reladinsc tlie carg-oes, carried them to the inother-coun- try of the colony. The motive for this was, that if the goods in question were hand fide imported from the neutral country, the transaction was a regular one. The courts held, that if an original intention could be proved of carrying the goods from the colony to the mother-country, the proceedings in the neu- tral territory, even if they amounted to landing goods and pay- ing duties, could not overcome the evidence of such intention ; the voyage was really a continued one artfully interi upted, and the penalties of law had to take effect. Evidence, therefore, of original intention and destination was the turning-point in such cases. (See, especially, the case of the Polly^ llobinson’s Rep., ii., 361-372, the cases of the Maria, and of the William, ibid., V., 365-372, and 385-406, and the cases there men- tioned.) The principle of continuous voyages will apply when cases of contraband, attempt to break blockade, etc., come up before courts which accept this English doctrine. In our late war many British vessels went to Nassau, and either landed their cargoes destined for Confederate ports there, to be carried for- ward in some other vessel, or stopped at that port as a con- venient place for a new start towards Charleston or some other harbor. If an intention to enter a blockaded port can be shown, the vessel and the cargo, as is said in the text, are sub- ject to capture according to English and American doctrine from the time of setting sail. Now the doctrine of continuous voyages has been so applied by our Supreme Court, that it matters not if the vessel stops at a neutral port, or unlades its cargo and another vessel conveys it onward, or if formalities of consignment to a person at the neutral port, or the payment even of duties are used to cover the transaction : provided destination to the blockaded port, or, in the case of contra- band, to the hostile country, can be established, the ship on any part of its voyage, and the cargo before and after being landed, are held to be liable to confiscation. Or, if again the master of the vessel was ordered to stop at the neutral port to ascertain what the danger was of continuing the voyage to the 366 OF THE KELATIONS BETWEEN § 207.. blockaded harbor, still guilt rested on the parties to the trans- action as before. All this seems a natural extension of the English principle of continned voyages, as at first given out ; but there is danger that courts will infer intention on insuffi- cient grounds. A still bolder extension Avas given to it by our courts in the case of vessels and goods bound to the Rio Grande, the goods being then carried ujd by lighters to IMatamoras. We could not prohibit neutrals from sending goods to the Mexican side of that river ; but if it could be made to appear that the goods were destined for the side belonging to the United States, that was held to be sufficient ground for condemnation of them ; although, in order to reach their destination, they would need overland carriage over neutral territory. (See Prof. Bernard’s “ British Neutrality,” 307-317, and comp. Dana’s note 231 on Wheaton, § 508.) Dr. Ludwig Gessner, author of the work before cited, “Droits des Neutres sur IMer,” gives a certain assent to the principle of continuous voyages. In remarks on the condemnation of the Spri)}gholc by our courts, he coincides with the opinion, “that a capture can be justified, even Avhen the immediate destination is a neutral port, if it can be proved beyond doubt that the contraband of war is destined foi- the enemy.” But if proof beyond doubt is required, his limitation is not a A'ery practical one. (Opinion of L. Gessner, etc., London, 1869, from the “ Norddeutsche Allg. Zeitg.” of December 29 and 30, 1868.) § 208. In order to enforce the right of preventing neutrals from The ri'-htof conveyiug hostile or contraband goods on their ships, search. from breaking blockade, it is necessary that the bellio’e rents should be inAmsted Avith the rio-ht of search or visit. D O By this is intended the right to stop a neutral A^essel on the high seas, to go on board of her, to examine her paper’s, aird, it may be, even her cargo, — in short, to ascertain by personal inspection that she is not engaged in the infraction of any of the rights above enumerated. The right of search is by its nature confined within narroAV § 208. BELLIGERENTS AND NEUTRALS. 367 limits, for it is merelj" a method of ascertaining that certain specific violations of ri^lit are not taking place, and ^ 1 -1 n -1 • 1 • • 1 L- i' 1 Confined would otherwise be a great violation, itselt, of the nuhinnar- ^ u • limits. freedom of passage on the common pathway oi nations. In the first 2)Iace, it is only a tear right. The single exception to this is spoken of in § 212, namely, that a nation may law- fully send a cruiser in pursuit of a vessel which has left its port under suspicion of having committed a fraud upon its revenue laws, or some other crime. This is merely the con- tinuation of a pursuit beyond the limits of maritime jurisdic- tion with the examination conducted outside of these bounds, v/hicli, but for the flight of the ship, might have been con- ducted within. In the second jolace., it is applicable to merchant ships alone. Vessels of war, pertaining to the neutral, are ex- empt from its exercise, both because they are not wont to con- vey goods, and because they are, as a part of the power of the state, entitled to confidence and respect. If a neutral state allowed or required its armed vessels to engage in an unlawful trade, the remedy would have to be applied to the state itself, d'o all this Ave must add that a vessel in ignorance of the pub- lic character of another, for iirstance, suspecting it to be a piratical ship, may without guilt require it to lie to, but the moment the mistake is discovered, all proceedings must cease. (§§ 213,220.) In the third ]gl ace., the right of search must be exerted in such a way as to attain its object, and nothing more. Any injury done to the neutral vessel or to its cargo, any op- pressive or insulting conduct during tlie search, may be good ground for a suit in the’ court to which the cruiser is amenable, or even for interference on the part of the neutral state to which the vessel belongs.^ In the fourth place., it may be an 1 Hence it seems fairly to follow llmt r.entral goods not contrabjind, on bo.ard .T. merchant ship belonging to one bclligcrenr, me not confiscable, if .said .slop re- sists srarcli, or tries to escape frotn llie other lielligercnt’s crni-cr, wliile if tlie ship were nentrtil and did the same the.se gooils would be liab'e to ca])nire. So hold I.ord Stowell, Wheaton, Ortolan, Ctilvo ii., 021. The belligerent violates no duty by resisting or fieeitig from si'arch, bar the tietitrtil ship is bottiid not to intike resistance or try to esca| c. The I'ni’ed S ates ('our s, howewr, hold that if :i hostile capttiin resists search, ail goods on board are coi.liscable. 9 Cranch, 338 ; 3 Wheaton, 409. — T. S. 368 OF THE EELATIONS BETWEEN § 203. act of self-defense in extreme cases (see § 214), or what is equivalent to a war-right ag’aiiist unlawful expeditions by par- ties not constituting a state. It is plain, from the existence of the right of search, that an obligation lies on the neutral ship to make no resist- Duty of pub- ^ ^ ^ mittiiig to .a auce. The neutral is in a different relation to the belligerents than the vessels of either of them to the other. These can resist, can run away, unless their word is pledged, hut he cannot. Annoying as the exercise of this right may be, it must be submitted to, as even innocent persons are bound to siibmit to a search-warrant for the sake of general justice. Any resistance, therefore, or attempt to escape, or to get free from the search cr its consequences, by force, if they do not bring on the destruction of the vessel at the time, may procure its confiscation, even though it had been engaged in a traffic entirely innocent. This delicate right is often regulated by treaties prescribing Treaties of- distaiicc at which the visiting vessel shall remain thciTgluof* fi’om the vessel to be visited, which is in general not ?eajcii. ^Yithin cannon-shot ; the number of persons to under- take the examination, as that only two besides the oarsmen shall pass to the merchant vessel ; and the amount of evidence, which shall satisfy, — as that the ship itself shall not be searched, if the proper papers aie on board, unless there is good ground for suspicion that these papers do not give a true account of the cargo, ownership, or destination. If a vessel that is captured escapes with or without resist- ance into neutral territory, the neutral is not bound Ca?c of the . Emily St. to deliver it up, and the case is not one which his courts can notice. The case is like that of a slave or a prisoner of war recovering his liberty and escaping into his sovereign’s or other neutral territory. (Compare case of Creole., §§ 74, 134, p. 224, and § 151.) The case of the Emily St. Pierre, captui-ed in 1862, near our coast, illustrates this point. Some of the crew, being left on board, got possession of the vessel and carried her into Liverpool. Our government claimed her on the ground that the rescue was fraudulent and § 208. BELLIGERENTS AND NEUTRALS. 369 fin act of Tiolence towards a lawful cruiser. It is remarkable tliat a .similar case ooeurred in 1800, only that Gi eat Ilritain made the claim and our government rebutted it on grounds which the Bi-itish Government urged in 1832. See Prof. I’er- nard’s “ British Neutrality” (pp. 325-329), who says, “there ean be no doubt that the American Government was right in 1800 and wrong in 1862, and the English Government Avrong in 1800 and right in 1882. The enforcement of blockades is left . . . . by the law of nations to the belligerent alone. They are enforced by the exercise of the belligerent right of capture ; and this right is the Aveapon Avhich international laAV places in his hands for that expre.ss purpose. Capture is an act of force, AAdiich has to be sustained by force until the property in the vessel has been changed by a sentence of condemnation. If she escape meauAAdiile from the captor's hands, it is not for the neutral to restore her to him. Resistance or a rescue is ... . a distinct offense, clraAving after it a di.stinct and appropriate penalty, — confiscation. But liere, again, it is for the bellig- erent to inflict the penalty, and it is not the business of the neutral to help him to do this, either by recovering his prize for liim or by treating the act as a crime.” Other like cases AA’ere (1) that of tlie British vessel J"ere, recaptured and taken into GeorgetoAvn, S. C. (1795). The district court lu Id that the captors AA'ere entitled to the riglit of asylum. (2.) That of the United States vessel Lone, Avhieh had broken a blockade of Metamoras by a French blockading squadron, Avas taken by one of the A'essels, and then rescued by her captain, Avho car- ried her into NeAV Orleans. To the French Government’s de- mand that she should be delivered up on account of the breach of blockade and the unbiAAriul rescue, it was replied that the United States had not been called upon to restore property rescued on account of a captor’s failure to make the capture sure. It AA-as his duty to put an adequate force on his vessel, and the omission Avas at his peril. (Comp. TavIss, “Law of Na/- tions in War,” p. 496.) S70 OF THE RELATIONS BETWEEN § 209. § 209. • A search at sea is exceedingly annojdng, not only because ^ it may affect an innocent party, and may cause ex- right of pensive delays, but also beeanse tliose who are con- convoy ? ^ * cerned in it are often insolent and violent, ^\’hat can be expected of a master of a privateer, or of an inferior officer in the navy, urged perhaps by strong suspicion of the iieiitrars guilt, but that he Avill do his office in the most offen- sive and irritating manner? To prevent these annoyames, governments have sometiines ari’anged rvitli one another, that the presence of a public vessel, or convoy, among a fleet of merchantmen, shall be evidence that the latter are engaged in a lawful trade. But neutrals have gone farther than this, they have claimed, without previous treaty, that a national ship convoying their trading vessels shall be a sufficient guaranty that no unlawful traffic is on foot. The beginnings of such a iiistorioai ii- proceeded from the Dutch in the middle of the lustrations, seventeenth century, but the first earnest and con- certed movement on the part of neutrals for this end, was made near the end of the last century, at which time, also, the prin- ciiial maritime powers, excepting Great Britain, made treaties establishing the right of convoy between themselves. From this starting point, neutrals went on to claim that this ought to be regarded as a right forming a part of the laAV of nations, and to employ force, when Great Britain exercised, Avithout respect to the convoy, the right of search on the old plan. In 1798, the convoy of a fleet of Swedish merchantmen, having, in conformity with instructions, taken a British officer out of one of the vessels of commerce, the whole fleet Avas captured, and Sir William Scott, in the British admiralty court, decided that the act of violence subjected all the vessels to condemna- tion.i Not long after this, in 1800, a Danish frigate in the Mediterranean, acting as a convoy, fired on the boats sent from British frigates to examine the merchant vessels under its pro- tection. The act Avas repeated in July of the same year by 1 Case of the Maria, 1 Robinson’s Rep., 340-379. § 209. BELLIGERENTS AND NEUTRALS. 371 another frigate of the same nation, then neutral but ill-affected towards England. The frigate, named the /'Vc/yu, witli six trading vessels under its care, met six llriiish ships of wai’, when the refusal of a demand to search the menhantmen led to acts of hostility, which resulted in the currender of the Danish national vessel. In consequence, however, of negotia- tions between the two governments, the ship Avas released, and it Avas agreed, on the part of the Danes, that the right of con- voy should not be exercised, until some arrangement should be made touching this point. These collisions Avere one of the reasons for the foi’mation of the second armed 'neutrality of 1800. In that leaa'ue ^ Second the contracting poAvers (Russia, Sweden, Denmark, ai-mcaneu- and Prussia), among other stipulations, agreed that search should be prevented by a declaration of officers in charge of a coin'oy to the effect that the ships under his charge had no contraband goods on board. The armed neutrality aa'us succeeded by retaliatory embar- goes, and on the 2d of April, 1801, the battle of Copenhagen prostrated the poAver of Denmark. Conventions Avere soon afterAAmrds effected between Great Britain and the northern powers — i. e., Russia, Sweden, and Denmark, Avithont Prussia — by Avhich it AA’as agreed that goods on neuti’al A’essels, ex- cept contraband of Avmr and enemy's property, should be free, and in Avhich the folloAving arrangements regarding convoy received the assent of the parties : (1.) That the right of visit, exercised by belligerents on A-essels of the parties to the armed neirtrality, shall be confined to public A’es.sels of AAmr, and never committed to priA'ateers. (2.) That trading vessels of any of the contractants, nnder cOiiAmy, shall lodge with the com- mander of the convoying A'essel their passports and certificates or sea-letters, drawn np according to a certain form. (3.) That AA'hen such vessel of convoy and a belligereijt vessel meet, they shall ordinarily be beyond the distance of cannon-shot from one another, and that the belligerent commander shall send a boat ti) the neutral vessel, whereupon proofs shall be exhibited both that the vessel of convoy has a right to act in that ca- 372 OF TliE RELATIONS BETWEEN § 209. pacity, and that the visiting vessel in trntli belongs to the pub- lic navy. (4.) This done, theoe shall be no visit, if the papers aie according to rule. (Otherwise, the neutral commander, on request of the other, shall detain the merchantmen for visits, which shall be made in the presence of officers selected from tlie two shij93 of war. (5.) If the commander of the belligerent vessels finds that there is reason in any case for further search, on notice being given of this, the other commander shall order an officer to remain on board the vessel so detained, and assist in examining into the cause of the detention. Such vessel is to be taken to the nearest convenient port belonging to the belligerent, where the ulterior search shall be conducted with all possible despatch.^ The right of convoy, although not yet a part of international law, apparently approaches such a destiny, as it is now received by many jurists, and engrafted into the conventional law of almost all nations. Whether, as some put it. the word of honor of the commander of the convoying vessel ought to be sufficient proof, may fairly be doubted. The Fiench orders to their naval officers, issued in 1854, for the war with Russia, deserve notice for contemplating this point. “You shall not,” say they, “ visit vessels which are under the convoy of an allied or neutral ship of war, and shall confine yourselves to calling upon the commander of the convoy for a list of the ships placed under his protection, together with his written declara- tion that they do not belong to the enemy, and are not engaged in any illicit commerce. If, however, you have occasion to suspect that the commander of the convoy has been imposed upon [que la religion du commandant du convoi a dte sur- prise], you must communicate your suspicions to that officer, who should proceed alone to visit the suspected vessel.” § 210. On the ground of mere justice this right cannot be defended. It is said that tlie commander of the convoying vessel represents the state, and the state guarantees tliat nothing illicit has 1 See Append, ii., under 1800. § 211. BELLIGERENTS AND NEUTRALS. 373 been put on board the merchantmen. But how can the bel- lilierent know whetljer a careful search was made be- ^ .Tustire of fore sailing, whether the custom-house did not lend tuc right of ^ , • convoy. itself to deception? It is only by comity that na- tional vessels are allowed their important privileges ; bow, ex- ce[)t by a positive and general agreement, can those privileges be still further extended, so as to limit the belligerent right of search ? On the ground of interiiiitional good-will, however, the right is cap:ible of defense, and, so far as we can see, ex- cept where the protected fleet is far separated by a storm from its guardian, — in which case, we suppose the ordinary right of search must be resumed, — can be exercised in the in- terests of belligerents as well as neutrals. The United States have some eleven treaties, in which provision is made for con- voy : namely, eight with states of the American continent, and others with Morocco, Tunis, and Italy (1787, 1797, 1871). That with Morocco in 1787, expired in 1837, and provisions in early treaties with France and with the Netherlands seem to be obsolete. § 211. A novel case in international law arose, when, in 1810, Den- mark, being at war with England, issued an ordinance, Neutrals declaring to be lawful prize such neutral vessels as Jlgerent''^ had either in the Baltic or the Atlantic made use of English convoy. A number of vessels from the United States, bound to Rus.sia, had placed themselves under English pro- tection, and on their return, were seized and condemned in Denmark, not for resistance to search, nor for the character of their traffic, but for violating an ordinance to them unknown. The arguments of our negotiator setting forth the injustice of this piroceeding, are given at large in Dr. Wheaton’s “ Ele- ments ” (iv., 3, §§ 32, 556-566), and Mr. Manning has expressed a brief op^inion on the contrary side, in favor of the Danish rule, (iii., 11, pr. 369.) The ships apipoear to have been en- gaged in an innocent trade, and to liave dreaded the treatment they might meet witli from French cruisers, but not to have sought to avoid the allies of the French, the Danes. The case 374 OF THE RELATIONS BETWEEN § 211. Avas a peculiarly hard one, when they Arere condemned ; and this Denmark admitted in 1830, by paying an indemnity to our government for the sufferers. As for the principle on Avhich the case is to be decided, it seems to run betAveen mak- ing use of the enemy’s flag, and putting one's goods on board an armed enemy's A'essel. The former is done to enjoy certain priA'ileges, offered by a party at Avar, Avhich could not other- Avise be secured ; the latter may be done Avithout complicity Avith the intentions or conduct of the captain of the armed ship, or may be done Avith the design of having tAA'o strings to one’s bo\A% — of availing one’s self of force or not, as circum- stances shall require. Upon the Avhole, the intention to screen the vessels behind the enemy’s guns is so obvious that the act must be pronounced to be a decided departure from the line of ueutralitAq and one Avhich may justly entail confiscation on the offending party It is admitted by all, that Avithin the AAmters Avhich may be Search dur- culUd the territory of nations, as Avithin a marine ixcc'^uTe rov- Uague, or in creeks and bays, the vessel of a friendly enueiaws. state may be boardecl and searched on suspicion of being engaged in unlaAvful commerce, or of violating the laAvs concerning revenue. But further than this, on account of the ease Avith Avhich a criminal may escape beyond the proper sea- line of a countiy, it is alloAvable to chase such a vessel into the high sea, and then execute the arrest and search Avhich flight had prevented before. Furthermore, suspicion of of- fenses against the laAvs taking their commencement in the neighboring Avaters beyond the sea-line, Avill authorize the de- tention and examination of the supposed criminal. An Eng- lish statute “prohibits foreign goods to be transhipped Avithin four leagues of the coast Avithout payment of duties; and the act of Congiess of i\Iai’ch 20, 1799, contained tlie same proliibition ; and tlie exercise of jurisdiction to that dis- tance, for the safety and protection of the revenue hiAA's, AA'as declared by the Supreme Court in Church v. Hubbard (2 Cranch, 187), to be conformable to the laAvs and usages of na- tions.” (Kent, i., 31, Lect. ii.) § 214. BELLIGERENTS AND NEUTRALS. 375 § 213. That kind of right of search, -which -we have just consid- ereil, is an accident of sovereignt}’ in a state of peace, but is confined in its exercise to a smali range of suspicion of the sea. The right of search on suspicion of piracy, however, is a wai-right, and may be exercised by public ves- sels anywhere except in the waters of another state, because pirates are enemies of the human race, at -war with all man- kiml. The Supreme Court of the United States has decided that ships of war acting under the authority of government to ai’rest pirates and other public offenders, may “ approach any ve,ssels descried at sea for the purpose of ascertaining their real chaiacter.” ^ And thus even public vessels, suspected of piracy, may be called to account upon the ocean. Whether the detention of a vessel unjustly suspected of piracy may not be a ground for a claim of damages may be made a ques- tion . §214. It may happen, as in a rebellion, that a hostile expedition mav be surreptitiousl-c fitted out in a friendl-v conn- 4 4 » Senroh of try, without the fault of the officials, and that a ves- vessels hav- sel is on its way to land ti’oops and arms for aid in intent, and a civil war. In such a case self-defense authorizes search, and possibly seizure, whether such a vessel is found on the high seas or within the waters of the injured state. Of this the case of the Virginiiis, which is in some re.spects like that of the Caroline, is perhaps the most notice- oaseof the able illustration in recent times. The Virginius, car- ryiiig the flag of the United States, and supposed for some time to be a regularly registered vessel of the United States, was captured by a Spanish w-ar-steamer on the high sea, while endeavoring to I’each the neutral waters of the island of Ja- maica,-having been foiled in the attempt to land a party of insurrectionists on the Cuban coast. The capture occurred in the night of October 31, 1873, but the bulletin officially an- > Case of the Marianna Flora, 1 1 AVheaton, 43. 376 OF THE RELATIONS BETWEEN § 214. nouiifiiig it Avas not published at HaA’ana until NoA^emher 5. A couvt A\as assembled for the trial of the persons taken on the A'essel, one hundred and fiftv-fiA’e in number, of Avliom four AA'ere executed on the 4th of NoA-ember, thirty-seA’en on the 7th, and sixteen on the 8th ; and the remainder, one liundred and two in number, AA^ere deliA^ered on board a United States stenmer December 18. ddiere Avero nine executed avIio belonged to the United States, and a larger number of Britisli subjects. Tlie summary and informal process, the cruel execution of persons belonging to tlie creAV, even of mariners and cabin- boys, met Avith the just indignation of the' Avorld ; but in addition to this, unless the Virginias can be shown to be a piratical vessel, the mode of trial Avas a violation of Article 7 of our treaty of 1795 Avith Spain, Avhich secures a regular trial, the use of solicitors, agents, etc., and their free access to tlie subjects or citizens of tlie one party arrested for offenses com- mitted within the jurisdiction of the other. The Government of the United States, supjAOsing that our rights on the sea had been violated, as Avell as that persons illegally cajitured had been executed cruelly and against treaty, demanded reparation. As the result of negotiations, on the 29th of November, Spain stipulated to restore the Ufr- ginius and the survivors, and to salute the flag of the United States on the 25th of December folloAving. If, hoAvever, be- fore that date Spain should satisfactorily prove that the Vir- ginias AA’as not entitled to carry the flag of the United States, the salute should be dispensed Avith, and only a disclaimer of intent of indignity to the flag should be required. Further- more, the United States engaged on the same condition, to adopt legal proceedings, etc., against the ve.ssel, and the per- sons Avho might have violated the laAvs in relation to the ves- sel. It Avas afterwards proved that the Virginias aauis not legally a vessel of the United States. The real owners from the first Avere Spaniards. The oath of the American in Avhose name she Avas registered Avas false. So says the Attorney- general in a letter to the Secretary of State, dated December 17, 1873, §214. BELLIGERENTS AND NEUTRALS. 37T •Kvlio adds that, in his opinion, she had no right as against the United States, to carry the American flag, because she liad not been registered according to law. He adds, “ Spaii>, no doubt, has a right to capture a vessel with an Ainerican reg- ister, and carrying the American flag, found in her own watei’s, assisting or endeavoring to assist tlie insurrection in Cuba ; but she has no right to capture such a vessel on the high seas, upon an apprehension that, in violation of the neu- trality ('!■ navigation laws of the United States, she was on her way to assist said rebellion.” The reasoning and opinion of the Attorney-general are ex- amined by Mr. R. H. Dana, the editor of “ Wheaton,” in a Boston journal, of January 6, 1874. In brief, he takes’ the un- assailable position that actual ownership by a person belong- ing to a state, places a ship on the high seas under the ju- risdiction of that state. The Virginius, owned really by Spaniards, was really under Spanish jurisdiction; and “the register of a foreign nation is not, and by the law of nations is not recognized as being, a national voucher and guaranty of national character to all the world.” “ Nations having cause to arrest a vessel, would go behind such a document to ascertain the jnrisdietional fact which gives character to the document, and not the document to the fact.” “ Even a gen- uine pass|)ort, which is an assertion of national character, is not conclusive between nations on a question of right to ar- rest.” And if the Attorney-general thinks that Spain has no jurisdiction to inquire into violations of our laws, that the question, whether or not the register was fraudulently ob- tained, w'as a matter of our law and for our decision, it may be replied that, granting this to be true, the fact does not touch the question of jurisdiction, which depends on owner- ship. All that can fairly be said is, that while the nation of the owners has a right to arrest, the ostensible ownership ap- pearing on the legister fraudulently obtained, would suggest delay and sequestration of the vessel until the facts could be established. We add that the flag is no protection without a right to use it, and that every nation — for purposes of juris- 378 OF THE RELATIONS BETWEEN §214. diction over vessels of its subjects at sea, as veil as for other reasons — lias a right to decide by its ships of war whether its own vessels are not Aveaiino- a foreign flag. But the Spanish captain who took the Virginim supposed it to be a veritable Ameiic-an vessel, making an attempt to land men and instruments of Avar, in order to assist the insurrection in Cuba. What Avas his duty in the premises? It Avas to de- fend the coasts of Cuba, to the best of his ability, against a a'cs- sel Avhich Avas knoAvn to be under the control of the insurgents, for AAdiich he had been on the lookout, and against Avhich the only eft'ectual security Avas capture on the high seas. Of course such self-defense on the part of Spain involved a risk, like that Avhich Avas involved in the case of the Caroline, Avhere, as Avas mentioned in the text, ]\Ir. Webster admitted that self-defense Avas in extreme cases justifiable, although it might lie be5’ond the ordinary course of international hiAV. The Avriter of this work defended the proceedings of the Spanish vessel on this ground in some remarks made at the time, which Avere Avidely circulated in the newspapers. Some time afterAvards an emi- nent laAA^yer, Mr. George T. Curtis, examined the subject at large in “ The Case of the Virginms, considered Avith Reference to the LaAV of Self-defense,” and justifies the capture on the same ground. We quote a few AA'ords : “ We rest the seizure of this vessel on the great right of self-defense, Avhich. spring- ing from the law of nature, is as thoioughly incorporated into the hiAv of nations as any right can be. No state of belliger- ency is needful to bring the right of self-defense into operation. It existed at all times — in peace as Avell as in AAair. The only questions that can arise about it relate to the modes and places of its exercise. In regard to these AA^e have onlj" to say that there is no greater inconvenience to be suffered by admitting that this right may be exercised on the ocean, than is con- stantly suffered by neutrals from an exercise of the belligerent rights of nations at Avar. In fact the inconvenience is not nearly so great.” The documents may be found in Executive Document No. 30, Forty-third Congress, first session, accompanying a mes- sage of the Rresident. § 216. BELLIGERENTS AND NEUTKALS. 379 The following rules of international law are illustrated by the case of the Vh'ginius : — 1. That the right of self-defense authorizes a nation to visit and capture a vessel as well on the high seas as in its own waters, Avlien there is reasonable ground to believe it to be engaged in a hostile expedition against the territory of such nation. 2. That a nation’s right of jurisdiction on the high seas over vessels owned by its citizens or subjects, authorizes the deten- tion and capture of a vessel found on the high seas, which upon reasonable ground is believed to be owned by its citizens or subjects, and to be engaged in violating its laws. The flag or register of another nation, if not properly belonging to a vessel, does not render its detention unlawful by the cruiser of a nation to Avhich its owners belong. As, however, the regis- ter affords primd facie evidence of nationality, the nation which gave the register by mistake must be tieated witli great care, detention on grounds proved to be erroneous must be atoned for, and the question of ownership would naturally be committed, where the evidence is not patent, to a third party. 215. Soarrh of foreign vcj?- seis snrpcct- ed of being Fla vers un- authorized, As the slave-trade has not hitherto become piracy by the laAv of nations, but only by the municipal and conven- tional law of certain nations (§ 140), no state can authorize its cruisers to detain and visit vessels of other states on suspicion of their being concerned in this traffic, because the right of detention and visit is a right of self-defense. Every state mav, to carry out its laws and the laws of humanity, detain and search its own vessels in peace also, but if, in so doing, mistakes are committed, the comman- der of the searching vessel is’ responsible, and damages may be demanded. §216. Such right, hoAvever, of reciprocal detention and visitation upon suspicion of being engaged in the slave-trade has been conceded by a considei’able number of treaties between the 880 OF THE RELATIONS BETWEEN § 216. principal powers of Europe. Previous to the downfall of Bona- butconcea- P^H'te there had been a falling off in the traffic in ties bitwcou slaves ; for Great Britain had not only prohibited muLf uf'" citizens from the traffic, but prevented also liurope, enemies from engaging in it by her command of tlie seas; it had, moreover, long been forbidden under heavy penalties by the United States; and there were then on this side of the. water few motives for engaging in so dangerous an employment. At the peace, although the sentiment of Eu- rope was expressed against the slave-trade, the nations most interested in resuming it, France, Spain, and Portugal, refused to give it up at once, alleging that their colonies needed to be replenished with slave-laborers, while those of England were fully stocked. The first concession of the rigid of search is to be found in the treaty between Portugal and mid Portugal England made July 28, 1817, — which, however, re- lated only to the trade north of the equator ; for the slave-trade of Portugal within the regions of Western Africa, to the south of the equator, continued long after this to be car- ried on with great vigor. By this treaty, ships of war of each of the nations might visit merchant vessels of both, if sus- pected of having slaves on board, acquired by illicit traffic. By the treaty of Madrid, of the same year, Great Britain ob- tained from Spain, for the sum of four hundred thou- M.icirid, sand pounds, the immediate abolition of the trade north of the equator, its entire abolition after 1820, and the concession of the same mutual right of search which the treaty with Portugal had just established. The precedent was followed by a treaty of Great Britain with the Nether- lands, in 1818, which also contemplated the establishment of a mixed commission to decide upon the cases of ves- tiosi in 1813, sels seized on suspicion of slave-trading. Stipulations somewhat similar were made between Sweden and Great Britain in 1824. In 1831 and 1833, conventions between France and Great Britain included one more power in arrangements for mutual search. But the right of search was only admissible on the § 217. BELLIGERENTS AND NEUTRALS, 381 western coast of Africa from Cape Verde (15° north lat.) to the tentli degree of south latitude, and to the thir- conrcntions teenth degree of west longitude from the meridian of Paris, and also around Madagascar, Cuba, and Porto rritl' Rico, as well as on the coast of Brazil to the distance into the sea of twenty leagues. It was agreed, however, that suspected vessels, escaping beyond this range of twent}^ leagues, might be detained and visited if kept in sight. As to steps subsequent to ca])ture, no mixed commission was allowed, but the captured vessel was to be tiled in the country to whose jurisdiction it belonged, and by its courts. By the quintuple treaty of December 20, 1841, to which Great Britain, Austria, Prussia, Russia, and France, were parties, all these powers, excepting the latter, ?roaty”of'' conceded to one another the mutual right of search within very wide zones of ocean between Africa and America, and on the eastern side of Africa across the Indian Ocean. France, however, owing to ])02mlar clamor, and the dislike en- tertained by almost the entire chamber of deputies toward the riMit of search, withheld her ratification and adhered to her arrangements of 1831 and 1833, above spoken of, until the year 1845. In tiiat year she witlidrew her consent to the mu- tual right of search altogether, — as the terms of the F,.a,iop, in conventions allowed her to do, — but stipulated to drafv’s"icr' cooperate with Great Britain in suppressing the a°r'ii^u of slave-trade by sending a squadron to the coast of Af- rica. Each power engaged at first to keep twenty-six vessels on the coast for this service, but the number on the part of France was afterwards to be reduced to one half. This is be- lieved to be the existing arrangement. § 217. The Treaty of Ghent, which terminated the war between the United States and Great Britain on the 24th obligations of December, 1814, contains the following article: url'ia “ Whereas the traffic in slaves is irreconcilable with the principles of humanity and justice ; and whereas 382 OF THE RELATIONS BETWEEN §217. both II is Britannic Majesty and the United States are desirous of continuing their efforts to iiromote its entire abolitinn, it is hereby agreed tliat both the conti'acting parties shall use their best endeavors to accoinplisli so desirable an object." Tlie act pas.‘^cd by Congress in 1818, which increased the penalties hanging over this traffic and extended their :;pplication ; that of 1810, which authoi ized the sending of armed vessels to the coast of Africa, and the confiscation of slave-trading ships belono'iu'i' to citizens or foreign residents, together with the ell'ects on board; and the act of 1820, by which the slave- trade, wherever carried on. was declared to be piracy both for all persons on American craft so employed, and for American citizens serving on board vessels of any nationality, — these several acts show that the United States were sincerely en- deavoring ‘to accomplish so desirable an object ” as the entire abolition of this infamous traffic. But the trade continued, notwithstanding such legislation, and it would appear that vessels and crews from the United States were concerned in it, acting in the interest of Cubans, but especially of Portuguese in Brazil. The British govern- ment, therefore, from time to time, urged on that of the United States the adoption of more effectual measures to comply with the stipulations of the Treaty of Ghent. In particular it urged that the two nations should concede to each other the light of search, with the single object in view of ascertaining whether a suspected vessel was really' concerned in the slave- trade. To this the United States uniformly declined giving their assent. The right of search was an odious one even in war, and peculiarly odious, because British cruisers had exer- cised it in an overbearing and ilh'gitimate way, when the United States were a neutral nation. It would, if admitted, naturally involve a mixed court for deciding cases of captuie, which court, stationed in a foreign country, and composed of judges not all of them amenable to our laws, did not afford to native citizens brought hefore it those securities which are guaranteed to them by the constitution. Meanwhile, in February, 1823, by a vote of one hundred § 217. BELLIGERENTS AND NEUTRALS. 383 and tliirty-one tn nino, tlio House of Repi-esenfatives passed the following resolution : “ Tliat the President of the United States he requested to enter upon and to pros- of rebruary , j. ^ . ■ , 1 ‘-8, 18b2. ecute, li’oin tune to tune, sucli negotiations with the seveial maritime po^Yers of Europe and America, as he may deem expedient for the etfectual abolition of the African slave- trade, and its ultimate denunciation as under the law of nations by the consent of the civilized world.” The Secre- tary of State, Mr. J. Q. Adams, in transmitting this resolution to the British negotiator, says that “ the President has no hes- itation in acting upon the expressed and almost nnanimons sense of the House of llepresentatives, so far as to declare the willingness of the American Union to join with other nations in the common engagement to pursue and punish those Avho shall continue to practice this crime, and to tix them irrevoca- bh' in the class and under the denomination of pirates.” Most unfortunately the international arrangements here con- templated Avere not carried into effect. The British Govinm- ment conceived, as we presume, that it Avould be. very difficult to bring the other nations into similar agreements, and in fact did not, itself, carry through Parliament a hiAv making tire slave-trade piracy, until March 31, 1824. Again, therefore, the old plan of mutual search Avas urged ; but, although there Avas some little expectation that an agreement might be reached, on the basis of delivering over captured ves.sel3 to the juri.sdic- tion of their OAvn country, and of holding the captor respon- sible for any improper acts to the tribunal of the captured party, yet no definite result came from the correspondence be- tween Mr. Adams and the British minister at Washington. This correspondence deserves especial attention from the abil- ity Avith Avhich the Secretary of State discusses the right of search. The negotiations Avere noAV transferred to England, Avhere, on the 13Lh of March, in 1824, the two governments, by their i-epreseiitatives, signed a convention Avhicli nearly accomplished the object at Avhich they had been aiming. By this convention the officers of certain public 384 OF THE RELATIONS BETWEEN §217. vessels, duly instructed to cruise on the coasts of Africa, Amer- ica, and the West Indies, were authorized to detain and ex- amine vessels suspected of being engaged in the illicit traffic in slaves. If, after search, such vessels were found to be so employed, they were to be delivered np to the officers of a ves- sel of the same nationalitj’, who might be on the station ; or, if there were no cruisers nigh, were to be conveyed to the country to which such slavers belonged, or to one of its depen- dencies, and placed within the reach of its tribunals. Officers, exercising the right of search in a vexatious or injurious man- ner, were to be personally liable in costs and damages to the masters or owners of vessels detained and visited. In all cases of search the boarding officers were to give certificates to the captains, identifying themselves, and declaring their object to be simply and solely that of ascertaining whetlier the mercliantman was engaged in the slave-trade. Other provis- ions secured the riglit of challenging witnesses, and the pay- ment of their expenses. The tentli article we give in its own words: “The high contracting parties declare that the right, which, in the foregoing articles, they have each reciprocally conceded, of detaining, visiting, capturing, and delivering over for trial the merchant vessels of the other engaged in the Af- rican slave-trade, is wholly and exclusively grounded on the consideration of their having made that traffic piracy by their respective laws ; and further, that the reciprocal concession of said right, as guarded, limited, and regelated by this conven- tion, shall not be so construed as to authorize the detention or search of the merchant vessels of either nation by the officers of the navy of the other, except vessels engaged, or suspected of being engaged, in the African slave-trade; or for any other purpose whatever than that of seizing and delivei’ing iij) the persons and vessels, concerned in that traffic, for trial and ad- judication by the tribunals and laws of their own country; nor be taken to affect in any other way the existing rights of either of the high contracting parties. And they do also hereby agree, and engage to use their infinence, respectively, with other maritime and civilized powers, to the end that the § 218. BELLIGEKENTS AND NEUTRALS. 385 Afric.an slave-trade may be decdared to be piracy under the law of nations.” When this convention came before the Senate of the United States, they amended it as follows : (1.) Either party Amended by might renounce tlie convention after six months’ no- un'itea”* tice. (2.) The cruising of vessels on the search for slavers was limited to Africa and the West Indies, America being stricken out. (3.) Article VII. of the convention speaks of trying for piracy citizens or subjects of either country found on board a vessel not “carrying the flag of tlie other party, nor belonging to the citizens or sub- jects of cither, but engaged in the illicit traffic of slaves, and lawfully seized b}'^ the cruisers of the other party.” This, also, was struck out by the Senate. Such cases would be those of American citizens on board of Portuguese or other slavers subject to search by special treaty with Great Britain, who were committing an offense capital by the laws of their own country, but not capital by those of the country of the vessel. The convention, thus mutilated, went back to England to be rejected, and so the affair ended. § 218. The treaty of Washington, signed August 9, 1842, contains new arrangements in regai d to the right of search ° ° ° . Treaty of which have served until of late as the rule of practice w.ashmgton for the cruisers of the two countries. In Article VIII. of that treaty occur the following woi cls : “ Whereas, notwith- standing the laivs which have at various times been passed by the two governments, that criminal traffic is still prosecuted and carried on; and Avhereas the United States of America and Her IMajesty, the Queen of the United Kingdom of Girat Britain and Ireland, are determined that, so far as it may be in their power, it shall be effectually abolished ; the parties mutually stipulate that each shall prepare, equip, and maintain in service, fui the coast of Africa, a sufficient and adequate squadron or naval force of vessels, of suitable numbers and de- scriptions, to carry in all not less than eighty guns, to enforce 2d 386 OF THE RELATIONS BETWEEN § 218. separntely and respectively the laws, rig'hts, and obligations of each of the two countries for the suppression of the slave- trade : the saitl squadions to he independent of each other; but the two governments stipulating nevertheless to give such ordei's to the olfivers commanding their respective forces as shall enable them most elfectually to act in concert and co- operation, upon mutual consultation, as exigencies may arise, for the attainment of the true object of tliis article, copies of all such orders to be communicated by each government re- spectively.” To this, Article IX. adds, that whereas, notwith- standing all efforts that may bo made on the coast of Africa for suppressing the slave-trade, the facilities for carrying on that traffic and avoiding the vigilance of cruisers, by the fraud- ulent use of flags and other means, are so great, and the temp- tations for pursuing it, while a market can be found for slaves, so strong, as lhat the desired result may be long delayed, un- less all markets be shut against the jviirchase of African ne- groes ; the parties to this treaty agree that they will unite in all becoming remonstrances with any and all powers, within wliose dominions such markets are allowed to exist ; ami lliat they will urge upon all such powers the j^i'opriety and duty of closing such markets forever.” By Article Xl. it is provided that the eighth article shall continue in force five years after the ratification, and afterwards until either of the parties shall signify a wish to terminate it. In carrying out the provisions of this treaty, the squadrons of the two nations have acted in concert a good part untki’thc of tlie timo since 1842, and ■\vitli consideralde success. There are, however, serious difficulties iu the Avay of putting an end to the slave-trade under this arrangement, d he United States admit no right of seardi of vessels sustain- ing their national character. If, then, a British cruiser boards a vessel of the United States, Avhose papers are rigid, no seanli can bo made, notwithstanding the most flagrant suspicion, hhoul 1 the bo irded vessel, on the other hand, prove to he con- cerned in a lawful tiaffic, the cruiser is responsible for the damage of the detention. Unless, then, ships of the two na- §219. BELLIGERENTS AND NEUTRALS. 387 lions “hunt in couples,” or officers of one nccompnny the ships of the other, with authority to superintend the visit, the trade cannot wholly be prevented. Or rather such entire prevention will be impossible until the coast of Africa shall be skirted with Christian colonies, until its interior be stimulated into an industry which shall create a demand for labor at homo, and until the slave-trade shall become piracy by the voice of all nations. § 219. A question has arisen between the government of the United States and tliat of Great Britain, as to the true notion -(n, at does of the right of search? Is there any difference be- '{Va«h tween the right of visitation so called, and the right • of search, — between the right to ascertain by an inspection of the ship’s jiapers that she has the nationality which she claims, and the subsequent right of inspecting the vessel and cargo, for the purpose of ascertaining whether she has certain kinds of merchandise, as slaves for instance, on board, or whether her papers are fraudulent ? The English doctrine touching this point is expressed by Lord Aberdeen in a note addressed to our minister in London, of which the following words are a part : “ The right of search, except when sj)ecially conceded by treaty, is a purely belligerent riglit, and can have no existence on the high seas during peace. The undersigned apprehends, how- ever, that the right of search is not confined to the verification of the nationality of the vessel, but also extends to the objects of the voyage and the nature of the cargo. The sole purpose of the British cruisers is to ascertain whether the vessels they meet with are really American or not. The right asserted has in truth no resemblance to the right of search, either in prin- ciple or in practice. It is simply a right to satisfy the party, who has a lejiltimate intei’est in knowing the truth, that the vessel actually is what her colors announce. This right we concede as freely as we exercise. The British cruisers are not instructed to detain American vessels under any circumstances whatever : on the contrary, they are ordered to abstain from all interference with them, be they slavers or otherwise. But 388 OF THE RELATIONS BETWEEN § 219 Avliere reasonable suspicion exists that the American flag has been abused for the purpose of covering the vessel of another nation, it would appear scarcely credible .... that tlie gov- ei'ument of the United States, which has stigmatized and abol- ished the traile itself, should object to the adoption of such means as are iiulispensably necessary for asceitaining the trutli.” ^ A little later we find the English envoy at Washington in a communication from his government giving notice that Great Britain still “ maintained and Avould exercise, if necessary, its own right to ascertain the genuineness of any flag which a sus- pected vessel might bear ; that if, in the exercise of this right, either from involuntary error, or in spite of every precaution, loss or injury should be sustained, a ])rompt reparation would be offered ; but tliat it should entertain for a single instant the notion of abandoning the right itself would bo quite im- possible.” The government of the United States, on the other hand, Doptrino maintained that there is no right of visiting a unUc!i7 vessel, for the purpose of ascertaining its nationality States. distinct from the right of search, known to the law of nations ; that the right to visit, in order to be effectual, must in the end include search ; that the right differs in no re.spect from the belligerent right of search; and that every case of detention of an American vessel for this purpose is a wrong, calling for rejraration. These views are set forth by Mr. VV^ebster, then Secretary of State, in a letter to the ambas- sador of the United States at London. “No such recognition,” he there says [d c., of the right claimed by England], “has presented itself to the United States ; but, on the contrary, it understands that public writers, courts of law, and solemn treaties, have for centuries used the Avord ‘ visit ’ and ‘ search ’ in the same sense. What Great Britain and the United States mean by the ‘right of search,’ in its broadest sense, is called by continental Avriters and jurists by no other name than the ‘right of visit.’ Nor can the government of the United States 1 Comp. § 213, note. § 219. BELLIGERENTS AND NEUTRALS, 389 agree that the term ‘right’ is justly applied to sucli exercise of po-u^er as the British government thinks it indispensable to maintain in certain cases.” Again, “ there is no right to visit in time of peace, except in the execution of revenue laws or other munieipal regulations, in which cases the right is usually exercised near the coast, or Avithin a marine league, or Avhere the vessel is justly suspected of Auolating the huv of nations by piratical aggression ; but whenever exercised it is the right of search. To Lord Aberdeen’s declaration, that reparation aa'ouIcI be made for injury sustained through the exercise of this right of visit, it is replied that, “ if injury be produced by the exercise of a right, it Avould seem strange that it should be repaired as if it had been the effect of a Avrongful act. The general rule of laAv certainly is, that in the proper and prudent exercise of his own rights no one is answerable for undesigned injury. It may be said that the right is a qualified right, that is, a right to do certain acts of force at the risk of turning out to be wrong-doers, and of being made answerable for all damages. But such an argument avouIcI prove every trespass to be matter of right, subject only to just responsibility. It is as if a civil officer on land haA’e process against one individual and through mistake arrest another ; this arrest is Avholly tortious. The analogy is a good one. .Such arrests must constantly be made by policemen or sheriffs, unless they are omniscient ; and then any injury ought to be repaired. No one would think of say- ing it Avas done under any laAvful exercise of authority, or that it was anything but a mere trespass, though an unintentional trespass. The municipal laAv does not undertake to lay down beforehand any rule for the government of such cases ; and as little does the public laAV of the Avorld lay doAvn beforehand any rule for the government of cases of involuntary trespasses, detentions, and injuries at sea, except that in both cases, law and reason make a distinction betAveen injuries committed through mistake, and injuries committed by design, the former being entitled to fair and just compensatif n, the latter de- manding exemplary damages, and sometimes personal punish- 390 OF THE RELATIONS BETWEEN § 219. ment.” In nnother passage the inquiry is made, “ By what means is the ascertainment of the nationality of a vessel to be effected? j\Iust it lie to? Or, if it pursue its voyage, may force he used ? Or, if it resist force and is captured, must it not be condemned as resisting a right, which cannot exist with- out a corresponding obligation imposed on the other party? Thus, it appears that the right exercised in 23eace differs noth- ing, as to the means of enforcing it which must be adopted, from the right of search exercised in war, which the English government disclaims the use of. The government of the United States admits that its flag can give no immunity to pirates, nor to any other than regularly documented vessels, and it w'as upon this view of the Avhole case, that it cheerfully assumed the duties of the treaty of Washington.” ^ This discussion took place between 1841 and 1843. Since then, in 1858, the British government having sta- Fion of t7ie tioned cruisers near Cuba, for the purpose of prevent- fciiTii" in ino- the slave-trade Avith that island, certain American 1358 1859 ^ . . • • • ” ' A'essels were visited on suspicion, and loud complaints arose. The Senate of the United States, thereupon, passed the following resolution : “ That American vessels on the high seas in times of peace, bearing the American flag, remain under the jurisdiction of the country to which they belong ; ^ and, therefore, any visitation, molestation, or detention of such vessel by force, or by the exhibition of force on the part of a foreign poAver, is in derogation of the sovereignty of the United States.” From the explanations Avhich have since taken place, it does not appear that the British government Avas disposed to deny the right Avhich this resolulion implies.^ KnoAving or believ- A Comp. AA^lienton’s [listoni, pp. 5S5-71S (from which we h.avc freely drawn), and AVchstcr’.s IFo/t-.s, vol. vi., p. 029 et s'q. - AAHiat of Spanish or Mexican ve.sscls hearing this flag ? Tlie flag at the most is only j'rima facie evidence. The question .still is, whether the ship is an Ameri- can or not ■? ^ “In this di'Cnssion,” sav.s Ilistorlcns (]i. 1S2), “the American government was un(]Ucstionahly right in ]>oint of law.’’ “The English government had con- tended for a modification of that right [of search in time of peace], disguised. § 219. BELLIGERENTS AND NEUTRALS. 391 ing slavers to have an American nationality, it has, at least since 1842, clisclaiinecl the right to detain them, and finding them to be Americans, upon examination of their papers, it admits that it cannot search them without a violation of inter- national la^v^ What then is the point upon Avliic-h the two governments differ. Is it that the flag shall always protect the A'essel which carries it? We do not understand our gov- ernment to take this position, which would prevent, in fact, the execution of the treaties establishing the right of mutual search into Avhich England had entered with Spain and Portu- gal, and would render nugatory all attempts to put doAvn the sLwe-trade. Is it that if an American vessel is detained by mistake, no reparation shall ever be paid, and no apology be made for a searcli, or even a detention, that turned out to be unauthorized? But the contrary has been asserted by Lord Aberdeen and others Avho have spoken for the British gOA^- ernment. The only question between the two poAvers ought to be these ; in ascertaining the nationality of a vessel under suspicion, what procedure shall be prescribed to the officer in charge of the matter, and if injury is done by the detention, in Avhat waj' shall it be discovered and compensated? The English and French governments have agreed on a code of instructions relating to this subject Avhich are identical, and that code has been submitted to our government for its adop- tion.^ So stood the discussion between the tAvo governments on the right of search doAAui to 1860, Avhen the first edition of this Avoik Avas published. A neAv face Avas r;ui'gc“<=nt3 put on affairs by the treaty signed at Washington, April 7, 1862, and ratified at London, May 25, by which the two poAvers conceded the mutual right of search to public vessels specially provided with instructions for that purpose, which are authorized to visit each other’s merchant vessels, under the name of a n^Iit of ‘ visit.ntion,’ Tin's doctrine, however, was found to be nnsustainahle, and tlie froverninent of Lord Derby, in 185S, intimated to the American government their formal abandonment of the pretension. } Speech of Lord Malmesbury, of Feb. 14, 1859. 392 OF THE EELATIONS BETWEEN § 219. known or suspected of trading in slaves, but only within two hundred miles of the African coast south of parallel thirtj"- two, and within thirty leagues of Cuba. The searching officers are required to show their instructions, and give certificates of their rank, etc., to the visited vessel. Losses by arbitrary and illegal detention are to be made good, etc. Three mixed courts wdthout appeal are established, — at New York, Sierra Leone, and the Cape of Good Hope. Certain indications of tbe character of vessels searched are mentioned as being pre- sumptive evidence of intention to engage in the slave-trade, and as justifying detention and precluding damages on this account. Vessels condemned by the courts above-mentioned are to be broken up, and sold, unless used for public purposes. The treaty was to continue for ten years, and to terminate thereafter on one year’s notice. May this treaty prove an effectual bar to this wicked traffic in future. § 220. Viewing this subject now for a moment, not in the light of Nationality positive hiw, but ill that of justice, we must admit the icgiliraTtc distinction between search which ends with ascertain- qutry'in^ ^ vessel’s nationality, and search which goes time of peace, ftipther, to be entirely reasonable, and deserving of recognition by the laiv of nations. There is no middle ground between the flags’ being decisive proof of nationality and ex- amining upon suspicion. Every nation has, in peace, the right of visiting its oivn vessels on the high seas, and it may be highly important so to do. By the nature of the case, mis- takes must sometimes be made in attempting to exercise such a right, and as soon as they are discovered search is to be broken off. Suppose, again, that by special convention, two states were to give up, reciprocally, the right of search in war, and one of them were to be at war with some other country. Is it not evident that either such belligerent must abandon the right of search altogether, or ascertain for itself by inspection of papers, that particular vessels belonged to the country with which its agreement to abstain from search §221. BELLIGEEENTS AND NEUTRALS. 393 existed ? If an injury grows out of detention, so may it grow out of detention on suspicion of piracy, where the examination may proceed far beyond tlie point of ascertaining the nation- ality of the vessel. If now a nation or its cruisers may be called to account for injuring the innocent while doing a law- ful work, and if equitable claims for damages arising from de- tention are allowed, it is not easy to see what harm can spring from a police of the seas thus limited. § 221. “England asserts the right of impressing British subjects in times of war out of neutral ships, and of deciding by p.igi,ts to her visiting officers, who among the crews of such hTrleamJn merchant ships are British subjects. She asserts this as a legal prerogative of the crown ; which preroga- orJirBrit- tive is alleged to be founded on the English law of perpetual and indissoluble allegiance of the subject, and his obligation under all circumstances, and for his wliole life, to render military service to the crown whenever required.” ^ The exercise of this assumed right was formerly the source of more embittered feeling among the inhabitants of the United States towards Great Britain, than any or all other causes. At different times since the French revolution, and especially before the War of 1812, attempts were made to re- move by negotiation *this ground of vexation and animosity. In 1803, a convention having this in view, came to tlie point of signature, but was broken off, because the British govern- ment insisted that it should not apply to the “ narrow seas ” near the British islands. The War of 1812, it is well known, was justified on this pretext after the orders in council had been rescinded. The claim was not alluded to in the treaty of Ghent, nor has Great Britain since abandoned it. The ex- ercise of this right of search was pecidiarly galling and severe, because mistakes might arise, or be claimed to arise, from sim- ilarity of names ; and because emigrant sailors, whose families and hopes were on this side of the water, might be dragged * Mr. Webster’s letter to Lord Ashburton, of August, 1842. 394 OF THE EELATIONS BETWEEN §221. away from tlie vessel in wliicli tliey had shipped, and in which they would soon return to their homes. The question of the indefeasibleness of the subjects' allegi- ance, is by no means closely connected with this so-called right. Admit the doctrine of indissoluble allegiance, this right will not follow. Reject it, and still it might be true that England might impress her subjects not naturalized in this countiw, if found on our vessels. It is a claim of right to enforce mu- nicipal law outside of English territorial limits. But the right must be pronounced to have no foundation. A belligerent cruiser has no right to search a neutral on the high sea for any reason which does not involve the neutral’s violation of his neutrality, i. e., his attempt to aid one of the parties at war. For every other purpose the ship is territory, so far forth, that it is under its territorial law, and no one on board can be in- vaded more than another. The laws of the land to which a vessel belongs, govern on the high seas, unless international law interferes. Is it, then, against the law of nations, is it even a wrong done to a country, if a sailor there born is taken on board a vessel as one of its crew ? This will not be pre- tended. What, then, is to be thought of a right which in- vades the deck of a neutral vessel with force, in order to prevent that which a neutral may lawfully do and which, it may be, the sailor in question might lawfully do, until this right was enforced against him, and Avhich he Avas bound to do by contract ? Moreover, it is not easy to see, if the right exists, Avhy it is confined to a time of Avar, since it has nothing to do Avith the relations between the neutral and the enemy. It is really, then, a perpetual and universal right, if a right at all, and as legitimate on land as on the sea.^ It is tlie recollection of the arrogance Avith Avhich England, as the mistress of the seas, attempted to enforce this right, that obstructed her in making effective arrangements Avith the 1 In the second edition of Mr. Manning’s excellent work, p. 4.'i5 (1875), this right is regarded as an adjunct of the right of search. That is, because a cap- tain of a cruiser can do certain international acts, he may take the opportunity of doing certain municipal act». § 221. BELLIGERENTS AND NEUTRALS. 395 United States for suppressing the slave-trade. Had this un- happy wound not been opened years since, it is not unlikely that lier benevolent purposes towards Africa would have found more earnest cooperation, and have borne full fruit.^ We let this section stand as it was first Avritten, barely ad- ding that neAV laws in regard to naturalization, the affair of the Trent, and probably neAV views of policy and of right, seem to be sending this I’ight of impressing British sailors found on foreign vessels into oblivion. 1 Comp. Jlr. Webster’s admirable letter to Lord Ashburton, of August 8, 1842, given by Wheaton in his History, pp. 773-746, and in Webster’s TFori's, vol. vi., p. 318. CONCLUSION. DEFECTS, SANCTIONS, PROGRESS, AND PROSPECTS OF INTER- NATIONAL LAW. § 222. International Law, as we have viewed it, is a system of rules, adopted by the free choice of certain nations for the purpose of governing their intercourse with each other, and not inconsistent Avith the principles of natural justice. It has groAvn up by degrees, and has been submitted during its prog- ress to sundry motlifications. It is the most voluntary of all codes, but in other respects shares the character of national law. We propose, in this closing chapter, to consider briefly its defects, its sanctions, its progress hitherto, and its prospects for the future. The principal deficiencies of international law grow out of its A'oluntarv nature, and its being; a larv for the 1. Defects ^ of Tnteriia- coiiduct of perfectly sovereign independent bodies. Hence its slow progress, since it takes time for modi- fications or improvements of it to pass from one nation to another ; and hence, also, in part, the different views of it taken bj^ dilferent nations, some of Avhom are in advance of their age in a sense of justice or of true internalional policj’-. Its uncer- principal defect arising from this source is the tuant of an authoritative exponent of its princi- ples. When individuals differ in regard to their rights, the hiAV as interpreted by the courts, decides at last betiveen them. But no nation can set up its opinion on a doubtful question of international laiv as a rule for another. No text-Avriter has § 222. DEFECTS, ETC., OF INTERNATIONAL LAW. 897 such authority that all will abide by his judgment ; not to say that he may need an interpreter himself, that new cases may arise Avhich he has not contemplated, and that part of the law he has laid down may become obsolete. And thus, if na- tions have differed on some important question touching their rights, they have been prone, in the absence of any sovereign authority beyond themselves, to take the law into their own hands, — to commit their cause to the sword. In regard, however, to the question, Avhat is actually inter- national laAv, there seems to be no impossibility that a congress of men learned in that department should prepare a code, on which all Christian nations or the great body of them should agree. Such a congress has appeared to many to be highly desirable. That its decisions in the shape of a code Avould introduce entire certainty into the science, or that its oAvn lan- guage Avould not give rise to new uncertainties, is not to be supposed ; still, many questions as to the rights of ambassa- sadors, of neutral territory, and of war on land and on the sea, and the like, could be so far settled, that there would be feAver grounds of controA^ersy, fewer unintended violations of the laAV betAveen nations than hitherto. As for the interpre- tation of such a code in the general, and when it should bear on no present dispute, it is not unlikely that a uniform vieAV Avould groAV up among the publicists of all nations. And if additions or changes should be found necessary in the progress of human society, they could be made Avith more ease than the original code itself. The uniformity of opinion, in regard to what international laAv actually is at the present time, is greatly aided by the in- creasing closeness of intercourse betAveen those avIio devote themselves to that science. The “ Institution de Droit Inter- national,” embracing as it does ah the leading Avriters in this department in Europe, and some outside of Europe, may be said to have for its object, together Avith projects of improving the science, the criticism of its actual state and of the move- ments in the Avay of political treaties and of congresses Avhich are taking place among the nations. If those to whom the 398 DEFECTS, PEOGUESS, AND PROSPECTS § 222. •world must look for the actual state and the defects of this branch of the law, shall come to be of one mind, such agree- ment will have a good tendency in the end to produce uniform- ity among governments. Such uniformity Avould be of immense importance in preventing and in settling disputes between na- tions, for it would be a disgrace for any nation to oppose rules and principles which they themselves have admitted. § 223. Another defect of existing international law is the limited 2. itsnar- number of nations to which it is applicable. As it is row limits, voluntary code, to which neither the lialf-civilized nor the barbarian parts of the Avorld have given their assent, the Christian states Avho make it a law between tlieinselves, are in danger of acting as if no rules of justice bound them be- yond their oavu circle, and as if nations Avhich refused to abide by their rules of intercourse in any respect Avere to be treated as enemies. Formerly barbarous tribes Avere conquered under grant from the Pope to muke Christians of them. Noav great nations do not scruple to seize on islands or coasts Avith no suf- ficient pretext, or go to Avar because a nation of the East, in the exercise of its sovereignty, declines to trade Avith them. And Avlien AAmr breaks out in sucli cases, tliere is no acknoAAd- edged obligation to abide by the ordinary rules of humanity, nor indeed of justice. When Constantine AA'as stormed, in 1837, by the French, besides the ordinary pillage of property by the troops, a scientific commission robbed the inhabitants of all th.e Arabic manuscripts they could lay their hands on. No cure can be effectual for this evil, until a deeper moral sense and feeling of brotherhood shall dictate rules, humane and just, by AA'liich the vessels of civilized nations shall goA^ern their intercourse Avitli the AA^eak and the barbarous parts of the AAmrld. Nor even then aaHI hiAvless creAA'S abstain from out- rages Avhich Avill be aA’enged on the )iext ship, and thus neAV fuel be applied to kindle up the ferocity of saA'ages. And for ever}'^ outrage there Avill be a plea, Avhich will prevail, because the savages cannot tell their own story. We have already re- § 224. OF INTERNATIONAL LAW. 399 marked (§ 143), that rules of intercourse with such races of men cannot he conformed to our international code, and that punishments must often be summary Avith them, to be under- stood. But is justice, is humanity, to be thrown off, as being conventional? Can there be a doubt that, if all the ships of Christian states had dealt kindly and righteously Avith the islands of the sea, long ago they AA'ould liaA’e been far more open to Christianity and civilization than they are noAV. § 224. There is no natural umpire betAveen nations, and no direct Avay of preA’enting Avar, hoA\mver certain the rules of AJcfins of international hiAv may be. Nations, hoAveA^er, like prcrenting individuals, may seek the good offices of others, Avhen tween na- involved in strife, or friendly poAA'ers may offer their aid for the purpose of endeaAmring to prevent Avar betAveen their friends. There are three ways of doing this : mediation, arbitration by standiny courts, and private or compromissory arbitration. And these means, especially the tAA’o latter, may be used also to restore peace. 1. Mediation may be solicited or offered, and differs not from attempts of private parties to reconcile tAvo friends. It has a most natural oi-igin, and has ahvays been in use. At the Congress of Paris, in 1856, the folloAving recommendation Avas passed by the repi-esentatives of the poAv- ers there treating of peace. “The plenipotentiaries do not hesitate to express in the name of their governments, the wish that states, between Avhich a serious disagreement should arise, Avould, before appealing to arms, haA’C recourse, as far as cir- cumstances admit, to the good offices of friendly poAA^ers.” Tliis is a safe and a tame recommendation ; but it ought to be taken into account that in some cases, as in that of internal strife, the circumstances Avould hardly admit of interposition. Mediation is of use especially in preventing Avar. Sometimes one or both the parties may ask for it. Sometimes the offer from a poAverful third party might almost amount to a threat. Sometimes with it a suggestion of terms may be made to one 400 DEFECTS, PROGRESS, AND PROSPECTS § 224. or both of the parties. Sometimes the decided expression of a friend's opinion will lead a state to pause or draw back from the use of violence. 2. A second way of preventing war, is public arbitration, Public arbi- which the judges, process, and result are deter- tration. milled, not by the parties pro re natd^ but by the terms of an alliance intended to have continuance. It must be a court with a power to decide, and to enforce its decrees by an army placed by the allies at its disposal. It seems evident that such a court of arbitration could not be founded, or could not be lasting, unless the members had the same notions of justice, and were nearly equal in power. At least, if one strong nation Avere thus allied with several Aveak ones, there Avonld be danger of its employing the poAver put in its hands, for the opjn’ession of the confederacy. The proper sphere of such a system Avould be in a collection of homogeneous states. Of course disobedience to a decision of the court must involve Avar ; a military execution must be put into the hands of some of the members, and in the end, the Avhole body instead of a few members, might be iiwolved in Avar. Or if fines could be levied instead of immediate force, this would be but a delay of tlie evil. On the Avhole, unless the body constituting the court had some reason for keeping up their organization besides that of preventing dis- putes, it is not likely that it could long hold together. § 225. Plans of arbitration greAV up naturally on the soil of Greece. Plans of ar- Tliis is uot the place to examine them at large; bitration. Only say ^ that it may be laid doAvn as a rule of public law betAveen those Greek states, Avhich for any reason had a close union Avith one another, that Avar was not to be Avaged, until the method of judicial decision had been tried and failed. So also, — Ave are indebted for the remark to Schomann (“ Gr. Alterth.,” ii., 5), — after peace had been made, questions of interpretation and of breach of peace were 1 Compare article on Arbitration, International Review for January, 1874. § 226. OF INTERNATIONAL LAW. 401 to be submitted to some man or state, on whom the parties could agree. If the feeling — which was often disregarded — testilies to a special humanity of the Greek race, it must be accounted for als(j by all those causes, Avhether physical or pertaining to primeval history', Avhich divided ujj in numerous small states a race having a community of language, religion, and political thought. It is probable that all the political unions had courts not only for deciding suits betAveen citizens of the several states, but also for settling disputes between the states themselves. But our knoAvledge in regard to the most of them is too 'scanty to confirm this probability. In the project of the fifty years’ truce (b. c. 421), the parties to the neAv alliance Avere to be independent states and such as Avould submit their quarrels to arbitration. The Athenian symma- chy, as both Grote and Schomann think, had from the begin- ning, a common tribunal at Delos. So in Crete, a plan of arbitration can be traced between two toAvns, and the Lycian league, then a half Greek community, had a regular federal court. rp. Modern 1 lie plan.*! of per- petual peace. § 226. Tlie desolating Thirty Years’s War of the seventeenth cen- tury led to several plans of perpetual peace, which the next century and the present reneAA'ed. “ great design ” of Henry IV., in France Avas intended Th™ror to preserve peace between the three Christian con- fessions, to repress the Turks, to humble Austria, and to con- fine the house of Spain within narrower European limits. There Avas to be an artificially bounded collection of mon- archies and republics, forming a great union, Avith a tribunal or congress having the olfice of settling disputes betAveen princes and subjects, and of assigning their c^uotas of aid to the several states, in the endeavor to expel the Turks out of Europe. 'Fhis vision, rather than plan., suggested similar projects to Emery de la Croix, and to Castel de St. Pierre. Of this as Avell as of other similar plans an extended account is given by Dr. Wheaton in his “ History of 20 402 DEFECTS, PROGRESS, AND PROSPECTS § 226. the Law of Nations.” ^ St. Pierre contemplated a perpetual al- liance, or league, of which the states of Europe should be mem- bers, having in all, either singly or in groups, twenty votes. The allies should renounce the right of war, and submit their differences to the arbitration of the general assembly of the league, whose decision, if it carried three fourths of the votes, should be final. If one of the allies should refuse to abide by such decision, or make treaties in contravention of it, or make preparations for war, the allies should arm against the refractory member with the view of reducing it to obedience. The representatives of the league were to be empowered to pass, by a plurality of votes, all laws necessary to curry the objects of the alliance into effect, but entire unanimity of the allies was required for changes in the fundamental articles of their confederation. About the year 1789, and just before the great revolulion- 2. Jeremy outburst iu Europo, Jeremy Bentham sketched Bentiiam's. general congress, which was long after- wards published. The nations were first to be led to reduce and fix their military establishments in some fair ratio, and also to abandon their colonies, for which so much blood had been shed. Then a congress was to be established, consisting of two deputies from each state, the agency of which should consist in reporting and circulating its decrees, and in placing refractory states under the ban of Europe. Bentham was will- ing that a fixed contingent should be furnished by the several states for the purpose of enforcing the decrees of the court, but thought that public opinion and a free press would pre- vent the necessity of such an extreme measure. In 1795, Immanuel Kant published a short essay inscribed “Zum Ewigen Friedeii,” “ touching perpetual peace.” 3 kanus. preliminary articles were the following: That no state should be merged by inheritance, exchange, 1 For St. F:?rro’p, comp. Part ii., § ) 7 ; for Bciitham’s, Part iii., § 21 ; for Kaiit Part iv., §§ .So, 37. Comp, .also Kant, Zim Ewlrjen Friedeii, iu his Works, vol. V., pp. 411-r66 (ccl. Leipz., 1838) ; and Ladd, in Prize Essaijs on a Congress oj Nations, pp. 509-638 (Boston, 1840). § 226. ' OF INTERNATIONAL LAW. 403 sale, 01- gift in another state ; that standing armies should in time cease ; that no state debts should be incurred with refer- ence to extei-nal polities; that no state should inteifere with force in the affairs of another. Tlien follow the definitive ar- ticles, the first of which is, that every state shall have a re- publican constitution, or one in whieh all the citizens share in the power of making laws, and deciding on questions of peace and war. The next is, that international law shall be based upon a confederation of free states ; and finally, there is to be a citizenship of the world, limited to the notion of the free access of all men to, and their residence in any stati; upon the earth’s surface. The congress which Kant proposes is not to be indissoluble, but is to be held and to be dissolved according to the pleasure of the members.^ In 1838 the New York Peace Society petitioned the House of Re23resentatives of the Congress of the United States, that all difficulties with other states should Congress on thenceforth be submitted to third jiowers, and that a peace soci- the government should be requested to unite with other nations in establishing, if possible, a board of interna- tional arbitration with a code of rules obligatory on the par- ties to the jDlan. The House of Representatives had no power to do anything excejit to express an opinion on such a subject. An able report, adverse to the jirayer of the ]aetitioneis, was presented; in which some of the points were that without the unanimity^ of the nations, and even if one great power alone should decline concurrence, the ^dan would be rendered abor- tive ; that a code for which the p»arties to it were not prepared could do little good ; and that the decrees of a board of arbitra- tors would be either nugatory or might be used for the worst ends, to which we may add that it is hardly conceivable that a strong nation woidd submit vital jDoints of its policy to a court of arbitration. The committee, however, which made the report concurred with the memorialists in recommending the submission of our international difficulties to imjDartial powers, if that could be effected ^ Comp. Wheaton’s History, p. 754, and Kant’s Rechtlehre, § 61, the end of the treatise. 404 DEFECTS, PROGRESS, AND PROSPECTS § 226. In his “Outlines of an International Code” (1872), Mr. D. Mr. Field's I^eld lias a plan of a court for arbitration, to be plan. constructed by a league of nations, 'which is worthy of notice. When an agreement cannot otherwise be effected, a joint high commission of ten, chosen in equal numbers by the two parties between whom a difficulty subsists, shall report within six months their efforts to reconcile their principals. If they are unsuccessful, those parties shall give notice of the same to the other nations that have accepted the code, and the latter shall prepare the way for a high tribunal of arbitration, by their nomination of four persons each, out of whom, by successive rejections, the contestants may eliminate such as they do not like, until seven only remain. These are to com- pose the court. The parties to the code are to bind them- selves to unite in forming the commission and the tribunal, and to submit to the decision of the latter, whenever their cases come before it. If any one of them shall begin a war in violation of the code, the others are to bind themselves to resist the offending nation by force. The selection of arbitra- tors, as above described, is suggested by a plan under the old confederation of the United States. There seems to be no provision in this plan for the event of a member refusing to obey the arbitrators’ sentence. And yet this would be most likely to happen, when the most impor- tant disputes were brought before them. In any plan a danger would arise from the more powerful membei's resisting the de- crees of the court or making it their instrument. § 227. 3. Private arbitration is simply an agreement of two powers 3. Privateor Submit their differences to a third party, with a Fo^v'arbi-’^' promise to stand by its decisions, if the conditions tration. complied with according to whicli the case is put into its hands. This form of arbitration, which is common over the world, is borrowed especially from Roman private law, as it stood in the time of Justinian, when the parties no longer bound themselves by tlie penalty, which had been at first the § 227. OF INTERNATIONAL LAW. 405 essence of the transaction. Together with the engagement to stand by the sentence, the ti’ansaction may include the appoint- ment of arbitrators, and the consent, it might be, to special rules, such as lelated to the time, the place, and the length of sitting of the boartl of arbitration. The number of arbiti'ators may vary from one upAvard. The choice of them may pro- ceed from the parties, or these, after selecting together or apart an even number, may leave the umpire to be named by those already cliosen, or they may request foreign poAvers to name one or more to act concurrently Avith their oAvn appoint- ees. Thus the Geneva tribunal for the “ Alabama claims,” Avas composed of five persons named by the Queen of Eng- land, the President of the United States, the King of Italy, the President of the SAviss Confederation, and the Emperor of Brazil, respectiA'ely. Sometimes a single sovereign or magis- trate is requested by the parties to take charge of a difficulty betAA'een them, in Avhich case the evidence bearing on the case Avill be gathered and laid before him by persons of his ap- pointment, and the parties through their agents AA'ill have a hearing. The parties may make their own rules for the transaction, but if they make none, or omit to make any that are of essen- tial importance, Roman laAv is understood to guide the pro- ceedings in those particulars.^ A decision made by arbitrators Avould become null for va- rious reasons. If, for instance, their number Avere broken by 1 Comp. HefiFter, § 109. “ In case there are clifFerences of opinion [among ar- bitrators], without question tlie majority is to be regarded as deciding in the matter.” Pliillimore, iii., p. 4. If there be an uneven number of arbitrators, the opinion of the majority would, according to the reason of the thing, and the yus commune of nations, be conclusive.” To same effect, Bluntschli, Mod. Volckerr., §493. “The sentence of tlie majority is the sentence of tlie entire copi't.” So Dr. Goldschmidt in his excellent Projet, submitted to the Institnt de Droit In- ternational in 1874, § 25. “ Tonte decision, de'Hniiivcon provisoire, sera prise a la majoritc de tons les arbitres,” This is according to the rule of Roman law. Ulpian in the Digest, iv., 8, L. 27, § 3, says; “Si major pars consentiet, ca stabitnr; alioquin poena eommitteiur.” And he adds that a comproiniss is allowed where ihe number of arbiters is odd, not because it is easy to have an agreement of all, “ sed quia, etsi dissentiant, iuvenitur pars major cu us arbitrio stabitur.” 406 DEFECTS, PROGllESS, AND PROSPECTS § 227. death ; or if any of them became incapable of acting by rea- son of infirmity or insanity ; or if any of them were guilty of fraud ; or if the award were not rendered Avithin the time specified ; or if their decision went outside of the points sub- mitted to them, it might be rejected by eitlier. An instance of the rejection of a sentence on the hitter account is fur- nished by the procedure in regard to the ]\Iaine boundary, where the arbitrator, the King of the Netherlands, gaA'e his aAvard upon Avhat Avas not submitted to him, by undertaking to fix upon a boundary AAdiich neither party claimed to be the right one. M. Cahm speaks of this as a case in AAdiich “ the arbiter left the question of right in suspense, and confined himself to the suggestion of a basis of arrangement, entirely neAA" and hypothetical, such a solution not haAnng entered into the forethought of the parties” (i., 795). Ancient history furnishes us AAdth examples of disputes be- ing referred to indiA’iduals supposed to be impa.rtial. Thus, Periander reconciled Mitylene and Athens, and Themistocles settled a quarrel betAA'een Corinth and Corcyra. Or it might be that the dispute aa'us committed to a state friendly to both parties.^ In modern times such compromissory arbitration has been not unfrequently resorted to, but most commonly in cases of small importance. Some nine cases occurring in Europe be- fore the eighteenth century (during which they Avere less fre- quent), may be found mentioned in the article in the “ Inter- national RevieAV ” for January, 1874, referred to above. M. Calvo speaks of nine other cases, in a majority of Avhich an American state Avas a part}'" (i., § 667). Other examples may be found in the work of Dr. Twiss on the rights of states in Avar (p; 7). A very singula,r use of this procedure may be found to be suggested in the final act of the Congress of Vi- enna (Art. Ixix.), Avhere the question at issue AA-as, Who Avas duke of that part of the Duchy of Bouillon, Avhich was made to pertain to the Kingdom of the Netherlands. The diplomatic history of the United States has furnished ^ Comp. Schoemann, Gr. Altei-th., ii., 4. § 228. OF INTEKNATIONAL LAW. 407 instances, .some sixteen or move in number, of disputes thus settled ; most of which related to boundaries or pecuniary claims for injury to citizens. IMore important than any others, were the arbitrations and commissions provided for by the treaty of Washington in 1871. (See Appendix ii. under that year, end.) In almost all cases of disputes as w’ell Avith European pow- ers as with the states on this continent, the United States, it is probable, Avill continue to have recourse to this method for the settlement of difficulties. For our difficulties Avith other powei's will not generally be political, but Avill grow out of Avrongs dcme to individuals, or other transient acts of injus- tice on our part or on theirs, Avhich Avill admit of an exact es- timate or be atoned for by apology. ^ § 228. But what are the sanctions of international Iuav to deter from AVTong ? They are. First, Within each separate state municipal laws confirming it, and making penal interna- its violation. Such are the laAvs of the United States Avhich protect the persons of ambassadors, or prohibit offenses against neutral rights, and the like. (Comp. §§ 29, 176.) Secondly, The moral sentiment of each and all the states Avhich have consented to the existing laAv of nations. This is a con- siderable and an increasing force, one Avhich comes into the recesses of palaces and cabinets ; and Avhich sometimes speaks in threatening tones against gross wrongs. Thirdly, War. Great as the evil of Avar is, it is not in the existing condition of mankind the greatest. It would liaA^e been a greater eAul for the states of Europe to have surrendered their indepen- dence to Napoleon, than it Avas to recoA'er it by the sacrifice of untold treasure and countless lives. Nations are reformed by the sobering influences of Avar. Nations are exalted by 1 For tlie .subject of arliitration, besides the writers on intcrnutioiual law in general, compare especially, Goldscliiniilt’s excellent essay in German and French, pre.-ented to tlie Institnt de Droit Intcrmitional, and published in the Revue de Droit Internationale, for 1874; Ficrantoui, Arbitrati //iternaz/ooM/i, Naples, 1872, and Laveleye, Des Causes ActueUes de Guerre, etc., Brussels, 1873. 408 DEFECTS, PROGEESS, AND PROSPECTS § 228. contending in war for something which is good. Let not this dread sanction, then, be thought to be of no nse. War often cures the internal maladies which peace has fostered. § 229. But war often for a time exhausts and demoralizes, it some- Actuai times perpetuates injustice, it is occasionally under- Fntfraa- taken against the clearest provisions of the law of tionaiiaw. natioiis. Has, then, this law of nations, amid the violations of its code, on the whole made progress ? To this question a . negative answer can be given only by those who plant their argument on gross offenses rising up here and there, as we look down history, but who do not enough take into account the general strain and spirit of the ages.^ When the question is made to embrace a large tract of time, and we search for pi’ogress between the eras while the codes of Greece and Rome were living ones, and the present day, no one can hesitate what answer to give to it. But has there been prog- ress between the time of Grotlus (1625), or the peace of Westphalia (1648), and the most modern times? An answer by a very competent authority, — Dr. Wheaton, — at the close of his history, sums up the principal heads of progress as fol- lows : — “ That the pacific relations among nations have been maintained by the general establishment of permanent missions, and the general rec- ognition of the immunities of public ministers. “ Although the right of intervention to preserve the balance of power, or to prevent the dangers to which one country may be ex- posed by the domestic transactions of another, has been frequently assumed ; yet no general rules have been discovered by which the oc- casions which may justify the exercise of this right, or the extent to which it may be carried, can be laid down ; and that it remains, there- fore, an undefined and undefinable exception to the mutual indepen- dence of nations. “The exclusive dominion, claimed by certain powers over particular 1 Comp, for a gloomy view of the progress of intcruatioual law, the article* (referred to in § 3) in the Edinburgh Review, No. 156, for April, 1843. § 229. OF INTERNATIONAL LAW. 409 seas lias been abandoned, as an obsolete pretension of barbarous times ; the general use of the bigh seas, without the limits of any particular state, for the purposes of navigation, commerce, and fishery, has been conceded ; and the right of search on the ocean limited to the periods of war, except certain conventional arrangements applicable to the African slave-trade. “The navigation of the River Scheldt, which was closed by the treat}' of Westphalia, in favor of the commerce of Holland, has been reopened to all nations ; and the general right to navigate the Rhine, the Elbe, the Danube, and other rivers which separate or pass through different states, has been recognized as a part of the public law of Europe. “ The colonial monopoly, that fruitful source of wars, has nearly ceased ; and with it the question as to the right of neutrals to enjoy in war a commerce prohibited in time of peace. “ The African slave-trade has been condemned by the opinion of all Christian nations, and prohibited by their separate laws, or by mutual treaty stipulations between them. “ The practices of war between civilized nations have been sensibly mitigated, and a comparison of the present modes of warfare with the system of Grotius, will show the immense improvement which has taken place in the laws of war. “Although there is still some uncertainty as to the rights of neutral navigation in time of war, a conventional law has been created by treaty, which shows a manifest advance towards securing the com- merce of nations which remain at peace, from interruption by those which are engaged in war. “ The sphere, within which the European law of nations operates, has been widely extended by the unqualified accession of the new American states ; by the tendency of the Mohammedan powers to adopt the public law of Christendom ; and by the general feeling even among less civilized nations, that there are rights which they may exact from others, and consequently duties which they may be re- quired to fulfill. “ The law of nations, as a science, has advanced with the improve- ments in the principles and language of philosophy ; with our extended knowledge of the past and present condition of mankind, resulting from deeper researches into the obscurer periods of history, and the discovery of new regions of the globe ; and with the greater variety 410 DEFECTS, PROGRESS, AND PROSPECTS § 229. and importance of tlie questions to which the practical application of the system has given rise. '• And lastly, tlie law of nations, as a system of positive rides reg- ulating the mutual intei'course of nations, has improved with the general improvement of civilization, of which it is one of the most val- uable products.” To which we may add, that since Dr. Wheaton's history was written, in 1843, — Free navigation of nearly all the rivers of the world, under the jurisdiction of Christian states, has been conceded to those who dwell on their upper waters, if to no others ; That the Black Sea is open to all merchant vessels, and the navigation through the Danish Straits freed from onerous duties ; That most of the leading nations of the world have agreed, that as between them, free ships shall make free goods, and that privateering shall cease ; That European or Christian international law is spreading itself over the eastern Avorld far beyond what Dr. Wheaton could have conceived to be probable when he Avrote his his- tory ; and that the rules of Avar on land are becoming increas- ingly humane, and its interference Avith innocent trade in Avar is less of an evil. § 230. Is there reasonable expectation that this progress Avill con- Pro?pccts of fiw^ie in future times ? This question resoh^es itself .■a^iaw^for" the broader one, Avhether true civilization built the future. souiid morality and religion is destined to advance or to decline ? If nations are to groAV in moral enlightenment; if there is to be a faith that the great Ruler of nations has put them upon trial, as truly as individuals, so that no amount of power can save from punishment, or ev'en from extinc- tion, a nation, in AAdiich the feeling of justice is blunted by a long course of sinning; ; if opinion is destined to circulate so freely through the Avorld that crimes committed against other and weaker states shall stamp disgrace on a nation through § 231. OF INTERNATIONAL LAW. 411 coming time, and a sense of character over the world shall he felt to be valuable ; if national crimes shall appear to all to be hurtful to their perpetrators ; if, finally, closer intercourse shall bring the nations more nearly to the same standard of jus- tic(‘, then will international law purify itself, until it reaches the perfection of justice attainable by man, and with this that degree of humanity and of renunciation of strict light which is compatible with the distinct sovereignty and special sphere of seiiarate nations. That such advance will be made, we believe, for we can see no limit to the influences of the moral and religious pow'ers which the Author of Nature and of the Gospel has put into motion. And it is probable that the advance will be more rapid than heretofore, although by no means easy or unopposed. § 231. From all that has been said it has become apparent that the study of international law is important, as an index importance of civilization, and not to the student of law only, but to the student of history. In our land especially it is important, on more than one account, that this science should do its share in enlightening educated minds. There is, with the growth of the feeling of strength, an increasing ten- dency to commit wrongs upon other and perhaps w^eaker na- tions, which needs for its counteraction an enlightened opinion pervading the educated men of the country. There have been moie cases than one where the government has been obliged to retire from a position which Avould not have been taken if public law had been more studied. This department, again, of public justice is peculiarly enlarging to the mind. We con- template in it right and humanity on a great scale. We see in it the single state on the one hand, and the w’orld of nations on the other, acknowledging obligations of justice and human- ity as common to all, and the same for all ; ^ve see one law pushing itself by its moral force everywhere, until it shall em- brace and unite all men. There are no such universal ideas except those of religion, and both domains will spread together. 412 DEFECTS, PROGEESS, AND PROSPECTS. §231. And the spread even of the admission that the law of nations ought to be one and the same everywhere, would strengthen the feeling of world-brotlierhood of men, as by their nature formed for moral communion, more than anything except a common religion of mankind. And again, every educated person ought to become ac- quainted with international law, because he is a responsible member of the, body politic ; because thei-e is danger that party views will make our doctrine in this science fluctuating, unless it is upheld by large numbers of intelligent persons ; and be- cause the executive, if not controlled, will be tempted to as- sume the province of interpreting international law for us. As it regards tlie latter point it may be said, that wliile Congress has power to define offenses against the laws of nations, and thus, if any public power, to pronounce authoritatively what the law of nations is, the executive through the Secretary of State, in practice, gives the lead in all international questions. In this way the Monroe doctrine appeared ; in this way most other positions have been advanced ; and perhaps this could not be otherwise. But we ought to remember that the su- preme executives in Europe have amassed power by having diplomatic relations in their hands, that thus the nation may become involved in war against its will, and that tlie preven- tion of evils must lie, if there be anj^ with the men who have been educated in the principles of international justice. I close this treatise here, hoping that it may be of some use to ray native land, and to young men who may need a guide in the science of which it treats. APPENDIX I. A BEIEF SELECTION OF WORKS AND DOCUMENTS BEARING ON INTERNATIONAL LAW. A. ITS LITERATURE AND HISTORY. Von Ompteda. “ Literatur des gesamniten, so wolil naturlichen als posi- tiven, Vdlkerreclits.” Regensburg (Ratisbon), 1785, 2 parts, continued by Von Kamptz. “ Neue Literatur des Volkcrrechts seit dem Jalire, 178-1.” Berlin, 1817. Robert v. Mobl. “ Die Geschichte und Literatur der Staatswissensebaf- ten.” Erlangen, 1855-1858, 3 vols. Tbe first volume ineludes a monograpby on tbe more recent literature of tbe law of nations, containing valuable criticisms. Tbe works of KlUber and De Martens on tbe Law of Nations, in tbe edition of tbe former by Morstadt (1851), and of tbe latter by Verge (1858), contain, each, a selection of authorities and helps in that science, and tbe notes to Heffter’s “ Vdlkerrccht ” contain copious references to other writers. Rob. Ward. “ Enquiry into tbe Foundation and History of tbe Law of Nations in Europe, from tbe Time of tbe Greeks and Romans to tbe Age of Grotius.” London (and Dublin), 1795, 2 vols. Henry Wheaton. “ History of tbe Law of Nations in Europe and Amer- ica, from the Earliest Times to the Treaty of Washington, 1842.” New York, 1845. This work was first written and published in French (Leip- zig, 1841), as an answer to a prize question proposed by tbe French acad- emy of moral and political sciences, and was considerably enlarged when it appeared in its English dress. Ed. Osenbriiggen. “ De Jure Pacis et Belli Romanorum, liber singularis,” Leipzig, 1836. K. Tb. Putter. ” Beitriige zur Vblkerrecbtsgescbicbte und Wissen- sebaft.” Leipzig, 1843. Muller-Jochmus. ” Geschichte des Volkerrecbts im Altertbum,” Leip- zig, 1848. 414 APPENDIX I. Laurent (F.). “ Histoirc da Droit des Gens,” Ghent, 1850, Paris, 1851, 3 vols. The first volume treats of the Oriental nations, the second of the Greeks, the third of the Romans. Comp. Mold’s criticism, u. s., i., 374. B. DOCUMENTS, INCLUDING DIPLOMATIC HISTORY. 1. The Early Maritime Laws. These are chiefly contained in Pardessus’ “ Collection des Lois Maritimes Anterienrcs an XVlIl' Sihcle,” Paris, G vols., 4to, 1828-1845. The earliest of them, the laws of the Rhodians, belongs to the ninth cen- tury. To the twelfth century pertain the maritime laws contained in the Assises des Bourgeois du Royaume de Jerusalemme, the Rooles or Juge- mens d’Oleron, and the Jugemcns de Damin, or Lois de AFest-Capelle. Damm, in Flanders, the poi t of Bruges, began to be a town of importance before 1180. Its customs were principally copied from those of the isle of Oleron.^ The “Consolalo del Marc,” composed at Barcelona in the Cata- lonian dialect, the most extensive and important of the se.a-codes (comp. § 189), was collected in the fourteenth century, and to the same century must be ascribed the first laws of Wisby on the island of Gothland, and the customs of Amsterdam; but the sea-code of AVisby belongs to the next cen- tury, and, according to llullmann (“ Stiidtewesen des Mittelaltcrs,” i., 182), was borrowed in part from the laws of Oleron and of Amsterdam. The laws of the Hanseatic league are of various dates, especially of the four- teenth and fifteenth centuries, and the ‘‘ Guidon de la Mer ” was composed in the century next succeeding. The sea laws of Amalfi, of an earlier date, have been published by the Italian historian, Troya, under the title, “ Capit- ula et Ordinationes Maritime Civitatis Amaldtanai.” Vienna, 1844. 2. Collections of Treaties. Dumont. ” Corps Universel Diplomatique,” etc., Amsterdam and the Hague, 1726-1731; 8 vols., folio, most of them in two parts. A supplement to this work in 5 vols., folio (Amsterdam and the Hague, 1739), contains a history of ancient treaties by Barbeyrac (vol. i.), a supjilementary collection of treaties from 838 to 1738, — Dumont having ended with 1731, — by Ronsset (vols. ii., iii.), and a “diplomatic ceremonial of the courts of Enrojie” (vols. iv., V.), by the same author. Another supplement sometimes accom- panving Dumont’s work is entitled “ Histoire des Traites de Paix et Autres Negociations du XVID Siecle,” by Jean-Yves de St. Priest, Amsterdam, 1735, 2 vols., folio. AVenck (F. A. G.). “ Codex Juris Gentium Recentissimi,” Leipzig, 3 vols., 8vo, 1 781-1795. This embraces a period of thirty-seven years, 1735-17 72, and continues Dumont’s work. 1 AVarnkonif!:, in his Flanclrische Staats-und Eechtsyeschichte, vol. i., Appendix, No. XLI., gives an old text of the laws of Damm, instead of the modern and worthless one of Pardessus. APPENDIX I. 415 De Martens (G. F.). “ Recueil cles Principaux Traites dc Paix, d’Alliance, etc., depuis 17G1 jiisqu’ti nos jours.” The “Recueil” forms 8 volumes and reaches down to 1808, with 3 volumes of supplements. (•2d ed. Gotting., 1817-1835.) The “ Xouveau Recueil,” hy the same editor, continued by his nephew Ch. de Martens, by Saalfeld and Murhard, is in 16 vols., some of wliich are in several parts, so as to make 20 vols., and reaches from 1808 to 1839. The ‘‘Nouveau Recueil General,” edited by Murhard, and from the 14th vol. by Samwer and Hopf, consists thus far of 20 vols. The first part of vol. .x.x. reaches into 1875. The “ Nouveaux Supplemens ” by Murhard, in 3 vols., supply what is deficient down to 1839. A register in two parts, entitled ‘‘Table Generale du Recueil des Traites de G. F. de Martens,” accompanies this work, and covers the period down to 1839. (.All the volumes have been published at Gottingen in various years.) Schmauss (J. J.). ‘‘ Corpus Jui’is Gentium Academicum (1G9G-1 731).” Leipzig, 1730, 2 vols., 8vo. Leibnitz. “ Code.x Juris Gentium Dijilomaticus,” and “ Mantissa Codicis Juris Gentium Diplomatici.” Containing not only treaties, but various other documents. 1693, 1700, Hanover. Ch. dc iMartens et J. de Cussy. “ Recueil Manuel et Pratique des Traites. Conventions,” etc. Of this selection, which is intended to embrace the treaties on which the relations of the world since 1760 are based, 7 vols. had appeared in 1857. Most civilized nations have special collections of their own diplomatic transactions. AVe name a few: — Leonard. ‘‘ Recueil des Traites, etc., faits par les Rois de France, de- puis pres de Trois Siecles,” Paris, 1693, 6 vols., 4to. Rymer. “ Archiva Regia reserata, sive Foedera, etc., inter' Reges Anglise et alios quosvis ab ineunte Sajculo Xllmo. ” Lond. 1703-1735, 20 vols., folio. The later volumes were prepared by Robert Sanderson. ‘‘ Collection of all the Treaties of Peace between Great Britain and other Powers, from 1648 till 1771,” London, 1772. A second cd., by Ch. Jenkin- soii, afterwards Earl of Liverpool, in 3 vols., carries them down to 1784. Chalmers. ‘‘ A Collection of Maritime Treaties of Great Britain and other Powers,” London, 1790, 2 vols., 8vo. Liinig (J. C.). ‘‘Teutsches Relchs-Archiv,” Leipzig, 1710-1722, 24 vols., folio. ‘‘ Colleccion de los Tratados dc Paz, Alianza, etc.,” by D. Jos. Ant. de Abreii y Bertonado, Madrid, 1740-1752, 12 vols., folio. Cantillo. ‘‘ Tratados de Paz y de Comercio,” IMadrid, 1843. Liinig (J. C.). “ Codex Italim Diplomaticus,” Frankf. and Leipz. , 1725- 1 735. 4 vols., folio. Elliott (J.). ” American Diplomatic Code, containing Treaties of the United States between 1778 and 1834, ” AVashington, 1834. The seventh volume of ‘‘Public Statutes at Large of the United States 416 APPENDIX I. of vVmerica,” edited by R. Peters, Boston, 1848, contains, in two parts, treaties witli foreign states and Indian tribes. (Vols. vii. and viii., new ed.) Kliiber (J. Ij.). “ Acten des Wiener Congresses, in den Jabren 1814 iind 1815,” Erlangen, 1815-1816, 6 vols., 8vo. Gliillany (F. G.). “ Diploniatiselies Handbucli,” Nbrdlingen, 1855 to 1868, 3 vols. Also in French, Paris and Brussels, 1856. A brief selection, omitting a number of the most important treaties. 3. Diplomatic History. The Abbe de Mably. “ Droit Public de I’Europe Fonde sur les Traites,” Paris, 1717, 2 vols. Often reprinted, as in his Works (Paris, 1821, 15 vols.). Koch. “ Abrege de ITIistoirc des Traite's de Paix,” etc., Bale, 17D6- 1797, 4 vols. Recast by Scholl, Paris, 1817-1818, in 15 vols. Flassan. “ Histoire Generale et Raisonnee de la Diplomatic Fran9aise,” Paris et Strasbourg, 2d ed., 1811. The same author published a His- tory of the Congress of Vienna at Paris, in 1829. “ Histoire des Traites de Pai.x,” etc., by the Comte do Garden. Four- teen volumes appeared without indication of year before 1859, and reach down from the peace of Westphalia to the peace of Paris in 1814. This is a revival of the works of Koch and Scholl. Sec Mold’s critique on this work (u. s., p. 345), who is of opinion that De Garden’s own labors in this work are of but little importance. Spalding (h ). “ The Diplomacy of the United States. Being an Ac- count of the Foreign Relations of the Country.” Boston, 1826. Mignet. “Negotiations Relatives a la Succession d’Espagne sous Louis XIV..” Paris, 1835-1842, 4 vols., 4to. Other works on the history of diplomacy arc mentioned and characterized by Von Mold (u. s.). Here also tlie published correspondence of statesmen and ambassadors, and the works of the ablest historians, are great helps. Here is the place to name collections of documents, which are often of great value in illustrating the progress of negotiations. Of this kind are the Briti.sh and foreign state papers, of which twenty-four volumes had ap- peared in various years down to 1853 ; the Parliamentary papers of various years ; the “ Portfolio,” 6 vols., 1836-1837; “ Di[)lomatic Correspondence of the American Revolution,” by J. Sparks, Boston, 1829-1830, 12 vols.; “Diplomatic Correspondence of the United States from 1783 to 1789,” Boston, 1838, 7 vols. C. TREATISKS ON THE LAW OF NATIONS OR ON TITLES OF IT. (1.) Among the forerunners of Grotius maybe named Oldendorp, pro- fessor at Marburg. Isagoge, sen Elementaria Introductio Juris Naturae, Gentium et Civilis,” Cologne, 1539. Suarez, a learned Spaniard, professor at Alcala, Salamanca, etc. (1548- 1617). “ Dc Legibus et Deo Legislator!. ” APPENDIX I. 417 Francis a Victoria, professor at Salamanca. In his “ Rdectiones Theo- logicse,” ])iibli.-he(l at Lyons, 1557, the sixth part is eniitled ‘‘ Dc Jure Belli.” See Ilallam’s “Introd.” ii , 242, and Wlnaitoa’s *• Hht ,” ]>p. 35-43. Ballliazar Ayala, a Spaniard, judge advocate of the S[) uii'h army in the Netlierlands. “ De Jure et Olticiis Bellicis et Discipliiia Libia Ti-es,” Antwerp, 15D7. Comp. Hallam, ii., 244, and Wheaton, u. s., 43-49. The following passage, cited by Hallam from tliis scarce work, speaks well for Ayala's soundness of thinking: “ Bellum adversus inlidelcs, c.x eo solum quod infideles sunt, ne quidem auctoritate imperatoris vcl suinmi pontificis indici potest; infidelitas enim non privat infidides dominio quod habent jure gentium; nam non fidelibus tantum rerum dominia, sed omni rationabili creaturaj data sunt.” Albericus Gentilis (I551-1G11), son of an Italian who left his country upon embracing Protestantism. The son became jtrofessor of ei\ il law at 0.xford, in 1582, and published in the next year a treatise “ De Lo'yation- ibus ” — the first work, it is said, specially devoted to the riihts of ambas- sadors. In 1588 came out at O.xford his work “ De .lure Belli,” and still another is imputed to him by Oinpteda, entitleil “ De Jure IMaris.” Of Geniilis, Groliiis says, in his Prolegomena, § 38, “ cujus diligentia sicut alios adjuvari posse scio et me adjntum profiteor.” A new edition of his work ajipeared in 1878 under the care of Professor Holland, of Oxford. Benedict AVinckler (f 1G48), jwofessor of law at Lei[)zig, then syndic of Lubeck. “ Principiorum Juris Libri Tres,” Leipzig, 1615. For the predecessors of Grotius in general, compare Von Kaltenborn, “Die Vorlaiifer des Hugo Grotius,” Halle, 1848. (2.) Grotius and subsequent writers down to Moser. lingo Grotius, or De Groot (1583-1645). After filling important ofTices in Holland, Grotius was involved in the strife between Maurice of Orange, the Stadtholder, and the Grand Pensionary of Holland, Oldenbarnevelil. When the latter was beheaded, Grotius was condemned to perpetual im- prisonment, with confiscation of his goods, in 1619, but by a successful stratagem of his wife escaped from his confinement in 1621. The next ten years he spent in learned leisure in France, and the rest of his life in the service of Sweden, for a large part of the time as ambassador at the French court. Grotius was ctjually eminent in classical scholarship, biblical criti- rism, the defense of the truth of revelation, and the law of nations. He wrote also on history, law, and theology. During his exile in France was composed and published his work entitled, “ De .lure Belli et Pacis Libri Tres, in (piibiis jus naturm et gentium, item juris ]uiblici firseeipua explican- tnr.” The first edition was publisheil at Paris, 1625. Of the nnmlicrless editions which have since appeared, are deserving of mention, (1 ) That jmblished at Amsterdam in 1 720, in 2 vols., with the notes of Grotius, J. F. Gronovius, and of the. editor, J. Baybeyrac, a quofessor at Gryningen. 27 418 APPENDIX I. (2.) “ II. G rolii, etc., cum Commentnriis Ilenr. Libcii Baronis de Cocccji, mine .ml calcem cujuf-qnc capitis adjcctis, inscriis quoque observatioiiiljiis Sam. Bill. Bar. de Cocccji,” Lausanne, 1 7.5 1 , 5 vols., 4lo. These coniuien- taries had been jniblished before by ihemsclvcs. The text with an abridged translation and notes was published in 1853, at Cambridge, by Di’. W'lie- well. An excellent estimate of the work of Grotiiis may be found in Hartenstein’s “ Darstellung der Rechtsphilosophie des H. Grotius,” in the first volume of the transactions of the philological and historical class of the royal Saxon Academy, Leipzig, 1850. In some editions of the works of Grotius, as in Barbcyrnc’s, there is an- nexed a short treatise of his written in ] 009, and entitled ‘‘Mare Libe- rum.” In reply, the most learned Englishman of his time, John Selden, published his ‘‘Mare Clausum” (1035), in vindication of the claims of Great Britain to sovereignty over the seas which surround the British islands. Zoiicli (1590-1000), professor of civil law at Oxford, and Judge of the High Court of Admiralty. “Juris et Judicii Eecialis, sive Juris inter Gentes et Quaestionum de eodem Explicatio.” Oxford, 1050. Comp. Wheaton, “ Hist.,” pj). 100-103, and the table of contents in Omptedti, 1, § GL Samuel von Puffendorf, or Pufendorf (1031 or 1032-1094), professor at Heidelberg of the law of nature and nations (1001), then at Lund in Swe- den (1070) historiographer of the king of Sweden, and one of his council (1080), privy councillor of the Elector of Brandenburg (1088). His works which concerns us are, — (1.) “Elementorum Jurisprudentia; Universalis Libri Duo,” the Hague, 1000, a work of his youth. In this work, says Ompteda, he has the same course of thought which appeared in his later works. The natural jus gentium is included in the wider science of jus nalur®, and requires no special elaboration. Besides this there is no voluntary or positive law of nations, since tho.se usages which nations extensively observe in regard to war carry no binding force with them, and by their violation no duties, properly so called, are violated. The inviolability of ambassadors, and their other privileges, are derived, partly from the general law of nature, partly from the free act and policy of the nation accepting the ambassador, and can be refused at the pleasure of such nation without injury to the am- bassador’s sovereign. (2.) “ De Jure Natur® et Gentium Libri Octo,” Lund, 1672, and often. This is his principal work. A French translation, with notes, by Barbey- rac, appeared at Amsterdam in 170G, and an English translation in 1717. (3.) “ De Officiis Hominis et Givis,” 16 73. This is a mere extract from No. 2. Comp. Wheaton, 88-99. Leibnitz said of Puffendorf that he was “ vir parum juris consultus et minime philosophus. ” Too high a rank is given to him by Sir James Mackintosh, in his discourse on the law of na- ture and nations. APPENDIX I. 419 Samuel Rachel (1628-1691). professor first at Helmstadt. then at Kiel. “ De Jure NatiircB et Gentium Dissertationes Duo,’’ Kiel, 1676. 'Ihis work is remarkaljle as oppo-ing the views of Pulfemlorf. and as giving rise to a eoiiti'over.sy between two sects of Geianan juri'ts towards the close of the seveiiteenlh century. “The one sect,” says Dr. Wheaton (|). 103), “ adhering to Pnft’enilorf, denied tlie e.xistence of atty other law of nations than the law of nature, applied to independent coimnunities ; whilst the latter adopted the doctrine of Rachel, founding the law of nations upon the law of nature, as modified by usage and express compact.” Rachel’s def- inition of the law of nations is “jus phtrium liberarum gentittm, pacto sive placito expresse aut tacite initum, quo utilitalis gratia, sibi invicem obli- gantur.” For an analysis of his work see Oinpteda, § 74. J. W. Textor, professor of law at Altorf, then at Heidelberg (1637- 1701). “ Synopsis Juris Gentium,” Bale, 1680. He embraced Rachel’s views. Christian Thomasius (1655-1728) taught at Leipzig, then in 1694 be- came a professor in the new univeivity of Halle. “ Fundamenta Juris Naturm et Gentium.” Halle, 1705 (1st, ed.). A learned and inllueiitial defender of the views of Puffendorf. Adam F. Glafey (1682-1754), keeper of the Archives at Dresden. “ Vernunft und Vblkerrecht,” Frankfurt, 1723. Christian Von Wolf (1679-1 754), one of the most noted jdiilosophers of his day, professor at Halle in 1706, dismissed from his place by the king of Prussia on account of the theological odium excited against him, then at Marburg, and from 1740 onward again at Halle, being restored to favor. He wrote a .system of the law of nature in nine large quartos, of which the last volume treats of the law of nations ; and also in 1749, when he was seventy yemrs oil!, published his “Jus Gentium Methodo Scientifica Per- tractatum, in quo jus gentium natnrale, ab eo quod vohmtarii, pactitii et consuetudinarii est, accurate distinguitur,” Halle, 1749. Of this his “ In- stitutiones Juris Naturm et Gentium,” Halle, 1750, translated also into German and French, is an abridgment. “It is not easy,” says Wheaton, “to infer from the title of the former work precisely what the autlior un- derstood to be comprehended under the term voluntorij law of nations, as distinguished fi-om the conreniional and citslornarij law of nations. Grotius had used the, tevm Jus f/'^ulium voUintarium in a comprehensive sense, as in- cluding all tho.'c foundations of international law which could not properly be referred to the law*of nature, but depended upon the voluntary consent of all or many nations.” In his Prolegomena, IV’olf says that “the volun- tary law of nations derives its force from the presumed consent of nations, the conventional from their express consent ; and the consuetu liiiary from their tiicil consent.” This presumed consent lie derives from the fiction of a natural coinmoinvealth to which all nations belong, governed by laws which are modifications of natural law, fitted for such a society of nations, 420 APPENDIX I. and arc obliojntoiy on eacli member as tbe laws of a state are on its in li- vidual members. He barely assumes the c.\istence of such a eomniDiiwealth of nations, and does not show how or when the nations of the world be- came ihns united. Wolf, adds Wheaton, supposes himself to differ from Grotius as to a voluntary taw of nations, in two particulars. The first is, that Grotius regards it as a ))Ositive law, obligatory on account of the gen- eral consent of the nations or of certain nations, while IV’olf considers it to be a law imposed by nature, to which no nation may refuse its assent. 'J'he second, that Grotius confounds the voluntary with the customary law of nations, whereas the former is of universal obligation, while the latter j)revail.s between particular nations, having been established by tacit con- sent. (Comp. Wheaton, 17G-183.) AV'^olf’s works have become obsolete with his jdiilosophy, but his materials have been worked over by a disciple, Emmerich de Vattel (1 714-1 7G7), a Swiss, who for inan}^ years was in the service of the Saxon court, and pid)lished at Leyden, in 1758, “ Le Droit des Gens, ou Piinci]ies de la Loi Natnrelle appliques a la Conduita des Nations et des Soiiverains.” This work, on account of its clearness and smoothness, has long been a favorite with statesmen, and has been tr.inslated into the principal languages of Europe. The best edition of it is that ]mblished at Paris in 1838, with notes by Pinheiio-Ferrcira. De Ileal. “ La Science dn Gouverneinent.” Pai'is, 1754 and 17G4. In eiibt volumes, the fifth of w liich contains the law of nations. J. G. llcineccius (IG81-1741), professor at Halle, etc. “ Elementa Juris Natnra; ct Gentium.” Halle, 1 738, translated into English, 1742, by G. Turnbull. He understands by jus gentium, says Onqiteila, the rights which find their application to societies of every sort, and treats only in a cursory way of the rights of nations. Another work of his was a ” Dissertation de Na\ ibus ob IMercinm lllicitarum Vecturam Commissis ” (Halle, 1721 and 1740 ); also translated into German and Dutch. J. J. Hurlamaqui, professor of law in Geneva, and member of the council there (1G94-1748). “ Principes du Droit Naturel.” Geneva, 1747. Ti’anslated also into English. Thomas Ilutherforth, professor at Cambridge, archdeacon of Essex. ” Institutes of Natural Law,” London, 1754. Cornelius von Bynker.shock (1G73-1 743), member and president of the sniireme court of Holland. He has written no systematic work, hut the following dissertations, contained in the second volume of his ‘‘ Opera Omnia” (la'i-den, 17iI7), “ De Dominio iMaris ” (1 702), “ De Foro Le- gatornin ” (1721), and “ Quaestioues Juris Publici ” (1 737), place him amoivj; the highest authorities. Charles .fenkinson, afterwards Lord Liverpool. “ Discourse on the Con- duct of the Go\crnment of Great Britain in respect to Neutral Nations,” 1 757. This ridates to the ” rule of 175G,” so called. Comp. § 200. Martin ililbner. ” De la Saisie des Batimeus Neutres,” etc. (The appendix I. 421 Hague, 1 759, 2 vols.) For a critique on this work, compare Wheato,, “History,” 219-220. (3.) Moser and writers since liis day, until about the year 1860. From this time the positive and practical tendency has prevailed. — in some writers to the neglect of the principles of general justice. 1. Systematic Works. John Jacob Moser (1701-1786), professor at Tubingen, then at Frank- fort-on-the-Oder, founder in 1749 of an academy for the political instruc- tion of young nobles, then in the service of the estates of Wiirtemberg, during which employment he was imprisoned by the Duke and kept in con- finement five years. A most voluminous publicist, thorougbly practical, with no great de|)tli or philosophical power, the father of the positive method. For an estimate of this excellent man, see Yon Mold, “ Gesch.,” ii., 402. His principrJ works are “ Versuch des Neuesten Europiiischen Volkerrechts in Friedens-und-Kriegszeiten,” etc., Frankfurt am Mayn, 1777-1780, in twelve parts; “Beytriige zu dem Neuesten Europaischen Volkerrechts in Friedenszeiten,” and the same in Kriegszeiten. Tubingen, 1778-1781. These two works are unfinished. Giinthcr (C. G.). “ Grundriss eines Europ. Volkerrechts, nach Vernunft, Vertriigen, Herkommen,” etc., Ratisbon, 1779, 8vo. Geo. Fred, de Martens (1756-1821). Professor at Gottingen, from 1808 in the service of the king of Westphalia, and then in that of Hanover. Of his numerous works two have already been mentioned. Another is entitled “ Precis du Droit des Gens Moderne de I’Europe, fonde sur les Trait^s et rUsace,” Gottinguc, 1789, transl. into German by the author, 1796, and into English by W. Cobbett, Philadelphia, 1795. The fourth edition in French appeared at Paris, 1831, in 2 vols., with notes by Pinheiro-Ferreira, who opposes the extreme positivism of De Martens and others. A fifth edition in French, with notes by Pinheiro-Ferreira and Verge, appeared in 1855, and has been used for the present work. Gerard de Rayneval (1736-1812). “ Institution du Droit de la Nature ct des Gens,” etc., Paris, 1803, in 1 vol., 1851, in 2 vols. Fried. Saalfeld. “ Ilandbuch des Positiven Volkerrechts.” Tubinfren, 1833. J. L. Kliiber (1762-1835), professor at Erlangen, then at Heidelberg “Droit des Gens Moderne de I’Europe,” Stuttgart, 1819, and in German as “ Eiiropaisehes Volkerrecht,” nearly at the same time. The Fi'encb work was reprinted in 1831, and the German, with notes by Morstadt, aC Schaffhansen, in 1851. Compare what IManning says of this work, p. 41 oi his Commentaries. He also, besides publishing the acts of the Congress of Vienna, wrote a work entitled “ Offentliches Recht des Deutschen Bimdes und der Bundesstaaten,” of which editions appeared in 1817, 1822, 1833. 422 APPENDIX I. Jul. Sclimelzing. “ Systeniatischer Grundriss dcs Praktisclieu Europ. Vdlkerreclits,” lludolstadt, 1818-1819, 3 vols. Tlieod. Scliinalz (17G0-1831). “ Europ. Ydlkerreclit,” Berlin, 1817. C. S. Zacbaria; (1 7G9-1843).. “ Yierzig Biicher voin Staate,” revised ed., Heidelberg, 1841, in 7 vols. A^ol. v. contains bis A^blkerrecbt.” Jeremy Bentbani (1749-1832). In vol. viii. of bis ^vorks, publisbed in. 1839, occur several fragments on international law, serving as an outline of tbe science, in wbicb be advocates bringing it into tbe form of a code and a common congress for tbe adjustment of differences between states. See Wbeaton’s critique (“Hist.,” pp. 328-344), and comp. § 22G, supra. James Kent (1 7G3-1847), Judge of tbe Supreme Court and Cbancellor of tbe State of New York, then professor of law in Columbia College, city of New York. His nine lectures on tbe law of nations form tbe first part of bis “ Commentaries on American Law,” wbicb appeared first in 182G, and following years, and in repeated editions since. Henry AVbeaton (1785-1848), reporter of decisions of tbe Supreme Court of tbe United States, from 1827, for many years representing tbe United States at tbe courts of Copenbagen and Berlin. His “ Elements of Inter- national Law ” appeared first in 183G, at London and New York, in an enlarged third edition in 184G, in a si.\tb in 1855, and a seventb in 18G8, witb notes by AY. B. Lawrence. An cigbtb appeared in 18G6, with elaborate notes by R. H. Dana, Jr. Tins is one of tbe standard works in our lan- guage. Dr. AVbeaton’s definition of international law makes it to consist of “those rules of conduct wbicb reason deduces, as consonant to justice, from the nature of tbe society existing among independent nations; witb such definitions and modifications as may be established by general consent.” This definition removes tbe science from the nakedly positive ground, and gives full scope to comparisons between tbe existing law and tbe standard of justice. AVilliam Oke Manning. “Commentaries on tbe Law of Nations,” Lon- don, 1839. This work is full on certain topics connected witb maritime war, especially on the rights of neutrals, but omits other topics of importance, as tbe rights of ambassadors. A second edition appeared in 187G. August W. Ileffter, professor at Bonn, and then at Berlin. “ Das Euro- piiiscbe A'dlkerrecbt der Gegenwart,” Berlin, 1844, where also tbe si.xtb edition of 1873 appeared. This work has higher authority in Germany than any other on tbe science of wbicb it treats. lliebard Wildman (Recorder of Nottingham). “Institutes of Interna- tional Law,” London, 1829, 2 vols. Pinbeiro-Ferreira. “ Cours de Droit Public Interne et Externe,” Paris, 1830, 2 vols. Tbe first part of vol. ii. treats of international law. A radi- cal writer, who exaggerates tbe rights of tbe individual and tbe individual state. J. AI. de Pando. “ Elementos del Dereebo Internacional,” Aladrid, 1843, 4to. APPENDIX I. 423 Poison. “ Principles of tlie Law of Nations,” to which is added “Di- plomacy ” by Thomas H. Horne. 2d ed., London, 1854. llobert Phillimorc, at one time i\I. P., Queen’s advocate in the Admiralty Court, judsi'e of the Cinque Ports, etc. “Commentaries upon International Law,” 3 vols., 1854-1857, rcprinteil in Philadelj)hia : a fourth volume on “Private International Law or Comity” appeared in London, in 18C1. A second edition appeared in 1870-74. This work, which I had not the use of, while prci)aring my first edition, is the most e.xtensive and learned work on the science in our language, if not in any language. Compare the favor- able critique of Mold, i., 398. It has been his object — the raithor says near the close of his work — “to strengthen or add to the previously e.xist- • ing proof that states, as well as individuals of which they are the aggre- gate, have in their collective capacity a sphere of duty assigned to them by God. He has endeavored to forward the great argument that there are international rights and therefore international laws, convinced that every work, however humble, which tends to procure the recognition of these laws, — to show by reason, by history, by authority, that the interest and duty of states are eventually one, — that the substitution of might for right brings misery, not only on the oppressed but on the oppressor, — deserves an indulgent reception from the world to which it is addressed.” 11. AV. Halleck, late major-general in the service of the United States. “ International Law; or. Rules regulating the Intercourse of States in Peace and AVar,” San Francisco, 18G1. Travers Twiss (Regius Professor of Civil Law at O.xford). “ The Law of Nations, considered as Independent Political Communities,” O.xford and London, 1861. “ Rights and Duties of Nations in Time of AA^ar,” London, 1863. 2. Essays and Tracts On separate titles of the law of nations. (n.) On ambassadors and consuls. Of Albericus Gentilis and of Bynkershoek’s treatise “ De Foro Lega- torum ” we have already spoken. Of works before the modern era we name here — Abraham AVicquefort (1598-1682), “ L’.Ambassadeur et ses Fonctions,” Cologne, 1679, the Hague, 1680, 1681. The fourth edition appeared at Amsterdam, in 1730, in two volumes, with Bai'bcyrac’s notes, who added other pieces of AA'icquefort’s and a translation of Bynkershoek’s above- named work. For AA’icquefort himself comp. Ompteda, p. 511, AA’heaton’s “ Hist.,” 234-246, and g 91 supra. Moser (J. J.) “ Beitriige zu dem Neuesten Europaischen Gesandschafts- rccht,” Frankfurt, 1781. David B. AA^ardcn (consul of the United States at Paris). “ On the Origin, Nature, Progress, and Influence of the Consular Establishments,” Paris, 1814, and in French, 1815. 424 APPENDIX I. A. Minis. “ Das Europ. Gesandtscliaftsreclit,” Leipz., 1847, 2 vols. Cli. lie Martens. ‘‘ Guide Dijilomatique,” Paris, 4th ed., 1852. Comp. § 98, svpra, note. F. de Gussy. “ Dietionnaire, on Mannel-lexique du Dijiloniate ct du Consul, ’ Li ipz., 18-lG. Also by the same author, “ Peglemens Consulaires de.s Prineipau.x Etats Maritimes de I’Europe et de P Am^riiiue,” Leipz. and Paris, IS-II. Also, “ Phases et Causes Celebres du Droit Maritime des Nations,” Leipz., 185G, 2 vols. Garden, le Comte de. '• Traite Complet de Diplomatie, ou Thdorie Generale des Relations Exterieures des Puissances de I’Europe,” 3 vols., Paris, 1833. Alex, de Miltitz, cliamberlain of the king of Prussia, formerly ambassador at Constantinople. “ Manuel des Consuls,” London and Berlin, 1837-1843, 2 vols., the second in two large parts. One of the most learned and ex- haustive woi'ks ever written on any braneli of the law of nations. (5.) On private international law. Joseph Story, Judge in the Stipreme Court of the United States, pro- fessor in the law department of Harvard University. “ Commentaries on the Conllict of Laws, Foreign and Domestic,” Boston, 1834, and a num- ber of eilitions since. Cotnp. § 73. Foelix. ” Traite du Droit International Prive,” Paris, 1843. A collec- tion of articles originally published in the author’s “ Revue de Legisla- tion.” Third ed., with notes by Dutnangeat. Paris, 1856, 2 vols. W. Burge. “ Cominentafies on Colonial and Foreign Laws, generally and in their Conllict with one another, and with the Law of England,” London, 1838, 4 vols. F. C. de Savigny. The eighth volume of his “ System des Heutigen Rbtnischen Rechts,” Berlin, 1849. W. Schaeffner. ” Entwickelung des Internationalen Privatrechts,” Frankfurt, 1811. ]\L II. IMasse. The secbnd volume of his “ Droit Commercial” is devoted to this subject. J. Westlake. ” A Treatise on Private International Law,” London, 1839. L. Bar. “ Das Internationale Privat-und-Strafreeht,” Hanover, 1862. F. 'Wharton. “ Conflict of Laws,” Philadelphia, 1873. C. Brocher. “ Nouveau Traite de Droit Internat. Prive,” Geneva, 1876. The older writers may be found enumerated in Savigny, vol. viii., p. 9, and at the end of the work of Foelix. The more recent, down to 1855, are classified and subject to a criticism by Mohl, i., 441-454. (c.) Property of states, sovereignty over seas and rivers. Eug. Ortolan. “ Des IMoyens d’acquerir le Domaine International,” etc. Paris, 1851. Comp. Mohl, i., 419. B. D. H. Tellgen. “ Disputatio de Jure in Mare Imprimis Proximum,’ Groningen, 1847. APPENDIX I. 425 Cremervan dem Bergh. “Historia Novarum Legum de Fluminum Com- munium Navigatione,” Leyden, 1835. Van Hoorn. Dissertatio de Navigatione et Mercatura in Mari Nigro,” Anisterilain, 1834. ((/.) Maritime law, rights of neutrals, capture, etc. 11. .J. Valin. “Nouveau Commentaire sur I’Ordonnance de la Marine du Mois d’Avril. 1681,” etc., llochelle. 1762, 2 vols., 4to. Third ed., Paris and Marseilles, 1780. Also “ Traitd des Prises, ou Principes de la Juris- prudence Francois concernant les Prises qui se font sur la Mer,” llochelle and Paris, 1782, 2 vols., 8vo. G. M. Lampredi. “ Del Commercio dei Popoli Neutrali in Tempo di Guerra,” Florence, 1788, 2 vols. Domenico A. Azuni. “ Sistema Universale del Pi ineipii del Diritto Maritimo dell’ Europa,” Florence, 1795, 2 vols. A French translation hy the author appeared at Paris, 1805, in 2 vols., 8vo, under the title “Droit Maritime de P Europe,” and another by J M. Dige'on, at Paris, in the year VI. under the title “ Systeme Universel des Principes du Droit Mar- itime de I’Europe.” The work has had also a Sjtanish and an English translation. Fred. J. J.acobsen. “ Handbuch liber das Praktische Seerecht der Eng- liinder und Franzosen,” etc., Altona, 1804, 1805, 2 vols. Also “ Seerecht des Friedens und des Krieges, in Bezug anf die Kauffahrteischiffahrt,” Altona, 1815. Lucchesi-Palli (Count Ferdinand). “ Principil di Diritto Publico,” etc., Na])lcs, 1840. Also translated into French by A. de Galiani, Paris, 1842. Theodore Ortolan. “ Regies Internationales et Diplomatic de la Mer,” Paris, 1845; third ed., ibid., 1856. Masse, ^I. G. “ Lc Droit Commercial dans ses Rapports avec les Droits des Gens,” 6 vols., Paris, 1844 and onward, ed. 2, 1865. The first volume treats of the rights of trade. Comp. Mold, i., 423. J. Reddie. “ Researches, Historical and Critical, in Maritime Interna- tional Law,” Edinburgh, 1844, 2 vols. “ Law of Maritime Commerce,” London, 1841. C. von Kaltenborn. “ Grundsatze des Praktischen Europaischen See- rechts,” Berlin, 1851, 2 vols. L. B. Hautefeuille. “Des Droits et des Devoirs des Nations Neutres en Temps de Guerre Maritime,” Paris, 1818. The 2d edition, in 3 vols., re- vised and modified according to the treaty of Paris of 1856, appeared in 1858. An important work. W. Hazlilt and R. Roche. “ A Manual of Maritime Warfare embody- ing the Decisions of Lord Stowell,” London, 1854. H. Byerly Thomson. “ The Laws of War affecting Commerce and Ship- ping,” London, 1854. Lock, W. A. “ A Practical Legal Guide for Sailors and Merchants dur- ing War.” Same place and year. 426 APPENDIX I. Hosack. “ The Rights of British and Neutral Commerce, as affected by Recent Royal Declarations.” Same place and year. For an estimate of these four English works, see Mold, i., 424. C. F. AVurm. *• A^on der Neutralitat des Deutschen Seehandels in Kriegszeiten,” Hamburg, 1841. C. AA'^. Ascher. “Beitriige zu einigen Fragen iiber die Verhaltnisse der Neutralen Schiftahrt,” Hamburg, 1854. H. Marquardscn, professoral Erlangen in Bav.ai’ia. “ Der Trent- Fall, ziir Lehre von der Kriegs Contrebande, und dem Transportdienst der Ncu- tralen,” Erlangen, 18G2. Of works on the subjects of capture and search, we mention : — G. F. bon, 185G-1858, 8 vols. 8vo. — 9. Russia. “ Recneil tics Traites,’’ etc. Published by order of tlic Minister of For- eign Affairs by F. Martens, in Russian and French. 3 vols. down to 1876. — 10. Savoy, House of, from Peace of Cateau Cambreds in 1559, Turin, 1836-1861, 8 vols. 4to. — 11. Spain, “ Tratados de Paz,” etc. , 1700-1843, IMadrid, 1843. — 12. United States, Treaties, etc., since 1 776. 'Washing- ton, 1871, with an ajipendi.x, 1873. — 13. Spanish and Portuguese States of America, Cli. Calvo, “ Rec. des Traites de tous les Etats de r.Vmciique Latino,” from 1493 onward. In three parts : the first in 11 vols., 8vo, to 1807; the second in 5 vols., 1808-1819; the third to ihepresent time. Paris. 4. V’ riters on international law or on some title of it chiefiy since 1860: — iEgidi and Klauhold. “ Frcio Schiffe untcr Feindes Faggc,” 1867. A. Bello, of Chili. “ Principio de Derecho de Gentes.” An edition in Paris, 1860. ]\L Bernard, formerly Professor at O.xford. “Historical Account of the Neutrality of Groat Britain during the American Civil ’War,” London, 1870. With a number of lectures, etc. J. C. Bhintschli, Pi-ofessor at Zurich, klunich, Heidelberg. “ Das Mod- erne Vdlckerrecht,” Nordlingen, 1868, ed. 2, 1872, and many other works, the last being “Das Beuterecht in Krieg,” etc., Nordlingen, 1878. A. Bulmerincq, for some time I’rofes.sor of International Law, etc., at Dorpat. “ Die Systematik des Vdlckcrr., von H. Grotiusbis auf die Gegen- wart,” 1858. “ Praxis, Thcorio ct Codjficaiion des Yblckerrechts,” Leip- zig, 1874. A number of articles in Von Holtzcudorf's “ Rechtslexicon,” and elsewhere. 428 APPENDIX 1. C. Calvo, Minister from Paraguay. “ Lc Droit International Tlieorique et Pratique.” First written in Spanish, 18G8. Second French edition in 1870-1872. 2 vols. E. Cauchy. “Memoires sur le Droit Maritime International,” etc. Paris, 1802. 2 vols. (crowned by the Academy of Moral and Political Sciences). Dana, R. H. Jr., editor of Wheaton’s “Elements,” ed. 8, 1806, which is specially valuable on account of cases growing out of the war of the se- cession. Do Clercq. “ Formulairo des Chancelleries Diplomatiques et Consul- aircs,” Paris, ed. 3, 1808. Also with Yallat, author of ‘‘Guide Pratique des Consulats,” Paris, 2 vols., ed. 3, 1809. De Pistoyc et Duvcrdy. “ Traites des Prises Maritiiiies,” Paris, 1859, 2 vols. P. Esperson, Professor at Pavia. Author of numerous works, as “Dei Rapporti Giuridici tra i Belligeranti e i Neutrali,” Turin, 1805 ; “La Qucstione dell’ Alabama,” etc., Florence, 1809; “ Diritto Cambiario In- ternazionale,” Floi’cnce, 1870; “Diritto Diplomatico,’’ etc., 2 vols. Field, D. D. “ Draft Outlines of an International Code,” 1872, 1873, also translated into Italian by Prof. Pierantoni. Fiore Pascal, Professor of International Law at Turin. “ Diritto Pub- lico Internazionale,” Milan, 1805. “Diritto Internazionale Private,” Flor- ence, 1874, 2d ed. Both translated into French by M. Pradier Fodere. L. Gessner. “ Droit des Neutres sur Mcr,” Berlin, 1865. “ Ziir Re- form des Kriegsrccht,” 1875. L. Goldschmidt, Professor at Heidelberg, 1800, at Berlin, 1875, author of articles in several legal journals, especially of “ A Project of International Arbitration laid before the Institut Du Droit International in 1874 ”; also of a “ Ilandbuch des Ilandelrechts,” vol. i., ed. 2. Stuttgart, 1874, 187.5. Hall, AV. E. “The Rights and Duties of Neutrals,” 1874. Holland, T. E., Professor at Oxford, editor of “ Albericus Gentilis de Jure Belli, lib. tres,” Oxford, 1877. Y. Holtzendorf, Professor at Munich, editor of the “ Encyclopaedie der Rechtswissenschaft,” 3 vols., 3d ed., 1870. In vol. i. there is a sketch of European International Law by the editor. F. Laurent, Professor at Ghent. See § 34. The entire book there men- tioned is now called “ Etudes sur I'llistoire de I’llumanite.” 10 vols. W. B. Lawrence, comp. AA^heaton, p. 300, supra. Mr. Lawrence, besides editing two editions of AAJieaton’s “Elements,” has been engaged in an extensive commentary in French on that book, and on AA^heaton's “ His- tory,” of which four volumes have appeared. He has also written several smaller essays on subjects of International Law. Lucas, C. J. ]\I., author of numerous essays on the civilization of war, as on arbitration, 1873, on the Conference of Brussels, 1875. G. Lushington. “ A Manual of Naval Prize Law,” London, 1866. APPENDIX I. 429 Mancini, P. S., Professoi’ in tlie University of Rome, Minister of State, etc. “ Droit International Public,” Naples, 1871, and numerous essays on the theory of law. IMarquardsen, II., Professor at Erlangen. “ Der Trent-Fall,” Erlangen, 1SG2, with many articles in Rotteck and AVelcker’s Lex., ed. 3, in Rlunt- schli’s “ Staatswbrterbuch,” ete. IMartens, F., Professor at St. Petersburg. His woiks on “ Private Property during War,” 18G9, on the “ Problems of IModern Interna- tional Law,” on “ Consulates and Consular Jurisdiction in the East,” are in Russian. Neumann, L., Professor at Vienna. “ Handbuch des Consulatwesens,” etc., Vienna, 1854. His collection of Austrian treaties is elsewhere men- tioned. Pierantoni, A., Professor at Modena, now at Naples. A very active writer, some of whose works are “ Gli Arbitrati Internazionali,” Naples, 1872, Translation of ]\Ir. Field’s “International Code,” 1874, “ Storia del Diiitto Internazionalc nel Seeolo XIX,” in the jiress. Pradier-Fodere, Paris. Known especially in international law by his editions and translations of Grotius, Vattel, P. Fiore; and as author of “ Principes Gencraux de Droit, de Politique, ct do Legislation,” Paris, 18G9. G. Rolin-Jacquemyns, chief editor of the “Revue de Droit Interna- tional et de la Legislation Comparee,” in which many articles of his own appear. Verge, C. IL, has published with a commentary the “Precis du Droit des Gens” of De Martens, which has passed through two editions. Vidari, Ercolc, Professor at Pavia. “Del Rispetto della Propriety fra gli Stati in Geeri-a,” Pavia, 18G7. “Revue de Droit International,” edited by Messrs. Rolin-Jaequemyns, Asher, and AVestlake. Begun in 1769. APPENDIX IT. LIST OP THE MOST IMPORTANT TREATIES SINCE THE REFOR- MATION, WITH A BRIEF STATEMENT OF THEHl PROVISIONS. [In this list the dates of the treaties arc intended to represent the day of their signature, and always in new style. For the modem ones we cite the collection of Martens and hir. continu- ators thus : Martens, “ Rec.,’* or “ R.,'’ for the Recueil ; Martens, “ Nouv. Rec.,*’ or “ N. R.,-’ for the Nouveau Recueil; and Murhard, or Murhard-Samwer, as Martens “Nouv. Rcc. Gen.,” or “N. R. C.," for the Nouveau Recueil General.] Ti:i:atii:s of tjif. Agf. of Religious Antagoxisji. 152G, Jnnnary 14. (Dumont, iv., 1, 399.) Treaty of IMadrid, by wbicli Francis 1. of France, then a prisoner, covenanted to give up bis claims to .Milan, Genoa, and Naples, Flanders and Artois, and to transfer to the Em- peror Charles V. the dneby of Burgundy — with its dependencies the coun- ty of Cliarolais and the seigniories of Noyers and of Cbatean Cliinon,- — ■ together with the viscounty of Auxonne and the “ ressort, ” or jurisdiction of Saint-Laurent, as being dependencies of Franche-Cointc. These and other onerous and humiliating conditions upon which he obtained his liberty he neither fnllilled nor intended to fulfill. Indeed a “ jirotestation ” (Dumont, u. s., 412) of the da}' before declares that (he treaty is null, being made by constraint. (Comp. § 104.) Ilai ing by such fraud obtained bis liberty, be refused, when the estates of Burgundy would not separate (hemselves from France, to return to prison as he had stipulated. Then followed the Holy League (at Cognac, Afay 22, 152G, between Pope Clement VIT., Francis L, Venice, Florence and the Duke of IMilan, against Charles V.), and a new Italian war, and in — 1.529, August 5 (Dumont, iv., 2, 7), the treaty of C.imbray, or Pai.x des Dames, so called fi-oni IMargaret of Austria, (he Km[)eror’s sister, and Louisa of Savoy, mother of Fi-ancis I., who negotiated it. By (his treaty, which was in form a renewal of the treaty of IMadriil with certain im])ortant cxce])lions, Francis was secured in the possession of Burgundy and its de- jiendcncies, renounced Flanders, Artois, etc., gave u]) his claims in Italy, abandoned bis allies, and in fact annihilated French influence in that pe- ninsula. Ilis two sons, hostages at Madrid, were freed on an engagement APPENDIX ir. 431 to pny two million crowns of gold or ducats. The adherents and heirs of the Constable de Bourbon were to be restored to their estates and civil stand- ing. This treaty, which was humiliating enough in itself, was made inoi-o so by the solemn formalities of its ratification, as if to show that the word of Francis could not be trusted. (Comp. § 110.) On the 29th of June, just before this, at Barcelona, a peace was con- cluded between the Pope and the Emperor, in which the former agreed to give the latter the Imperial crown, and the investiture of Naples as a fief without payment of vassals’ dues except that of a palfrey, with the right of nomination to twenty-four ei)iscopal sees in that kingdom. Charles in turn agreed to restore the Pope’s relatives, the bani,«hed Medici, and to stop the growth of heresy in Germany. (Dumont, iv., 2, 1-1.) A secret article, it is said, stipulated that the Pope should not give his consent to the divorce of the King of England from the Emperor’s aunt. 1530, December 31. Becess or convention made at Schmalkalden, prelim- inary to the league concluded at the same place February G, 1531, between a part of the Protestant princes and towns for mutual itroteclion in cai-e of attack on account of their religion. (Dumont, iv., 2, pp. 75, 78.) It was renewed for ten years, and enlarged in 153G, September 29. (Dumont, u. s., 141.) For the Catholic counter-league of June 10, 1538, comp. Du- mont, u. s., 1G4. 1544, September 18. The peace of Crespy was chiefly a ratification of previous treaties, as that of Cambray, and that of Nice (June 18, 1538), which latter was a ten years’ truce. 1547, May 19, The Protestants of the Schmalkalden League, having taken up arms against the Emperor Charles V. without success, and John Frederick, Elector of Saxony, being made prisoner at the battle of IMilhl- berg, he submits in the capitulation of Wittenberg of this date to the loss of his Electoral office and Principality, and to imprisonment during the Emperor's pleasure. The Electorate is transferred from the Ernestine to the Albertine line of Saxony, which is still the leading house ; and to the captive Elector’s children were granted a number of towns and districts, as Eisenach, Weimar, Jena, Gotha, Saalfeld, and Coburg, — the latter to be used first for the benefit of his brother. (Dumont, u. s, 332.) Out of these grew the Saxon duchies. 1552, August 2. Treaty of Passau, by which the Landcr.ave of Hes.se was set free, other Protestant princes were restored to their honors and estates, and relic-ions freedom was promised to the adherents of the Augsburg Con- fes.sinn, etc. (Dumont, iv., 3, 42 ) This was preliminary to the religious peace, concluded between the estates of Germany in the year — 1555, September 25, at Augsburg. By this the Lutheran religion ac- quired a legal status by the side of the Catholic, but the Reformed religion gained no ])rivileges. The peace embraced knights holding immediately of the empire, and both imperial and free towns, as well as higher members of 432 APPENDIX n. the confederation. Subjects professing another religion from that of their lord might have the liberty of emigrating without loss of goods. The church j)roperty already in the hands of Protestant estates, and not imme- diately related to the empire, was confirmed to them. All ecclesiasties who should renounce the Catholic religion for that of the Augsburg Confes- sion, “ whether archbishop, bishop, prelate, or any other of the spiritual order,” should lose the church goods and rights which they had before en- joyed. This goes by the name of reservalum ecclesiasticum, and proved to be a source of countless troubles. (Dumont, u. s., iv., 3, 88.) 1579, January 23. The union of Utrecht, out of which grew the Dutch Republic. (Dumont, v., 1, 322.) 1G31, April 6. Treaty of Cherasco (Querasque), between the Emperor Ferdinand II. and Louis XIII. of Franco (Dumont, vi., 1, 9), carrying out the treaty of llatisbon (Regensburg), of October 13, 1630, by virtue of which the Emperor was to acknowledge Charles Duke of Nevers as Duke of IMantua and IMontferrat. (Dumont, v., 2, 615.) But Trino (Train) and certain other places in Montferrat were to go to the Duke of Savoy. The French also renounced their conquests in Italy. In a secret treaty, how- ever, between France and Savoj', tbe best parts of IMontferrat, the town of Alba, and its environs, were to be handed over to the Duke of Savoy, who in turn was to give back Pigncrol, and a road from France leading to it, to the French king, thus opening the way into Italy. By this secret treaty the Pope was deceived, and the interests of the French pretendant to Man- tua were sacrificed. (Comp. Sclilosser’s “ Weltgesch.,” xiv., 398.) 1648, October 24. PEACE of Westphalia, consisting of the two treaties of Mlinstcr where the French, and of Osnabriick where the Swedes nego- tiated with the Emperor — the smaller German powers being also repre- sented. 'This peace put an end to the Thirty Years’ War, and adjusted the relations of a large part of Europe. In the same 3 ear, on the 30th of Jan- uary, Spain and Holland made a treaty of peace at Munster. Some of the more important diplomatic transactions, before this wmr or during its course, and relating to the quarrels in the German empire, were the Protestant Union, May, 1608; the Catholic Liga, 1610 (Dumont, v., 2, 118); the Irealg of Ulm, July 3, 1620, by which the Protestant princes vir- tually abandoned tbe Elector Palatine, as far as Bohemia was concerned (Dumont, u. s., 369); the peace of LiibeeJe, May 22, 1629, in which the King of Denmark withdrew from the war in Germany (Dumont, u. s., 584); the edict of restitution, March 6. 1629 (Dumont, u. s., 564); and the peace (f Prague, IMay 30, 1635 (Dumont, vi , 1, 88), between the Emperor and (he Elector of Saxony, to which last nearly all the German states ere long ac- ceded, thus abandoning the war and the cause of the Swede.s. The edict of restitution was an interpretation, given by the Em[)ei-or’s arbitraiy act, to the treaties of Passau and of Augsburg, to the effect that all ecclesiastical property, seized by the Protestant estates since the year 1552, should be APPENDIX U. 433 restored; that Catholic princes had the right of requiring their Protestant subjects to conform to their religion or of sending them out of their terri- tories; and that the peace did not include any Protestants, except those who adhered to the Confession of Augsburg non variaia, thus excluding the Reformed or Calvinists. Tlte peace of Prague, on the other hand, virtually gave into the hands of the Protestant estates all immediate property which they had approi)riated before, and all, mediate or immediate, which they had appropriated since the religious peace, by conceding to them the con- trol and use of it for forty years, etc. The principal provisions of the Peace of AVestphalia (Dumont, vi., 1, 450, 469 in French, — for the original Latin see Ghillany, “Manual Di- plom.,” i., 1-100) were in brief these: — 1. Sweden, as a satisfaction for i-estoring places occupied in the war, re- ceived Hither Pomerania, the isle of Riigen, parts of Further Pomerania : Stettin, Garz, D.imm, Golnow, and the isle of Wollin, the course of the Oder between these places, the “ frisehe Haff ” and its mouths, etc., with the e.x- pcctancy of the rest of Further Pomerania, should the males of the house of Brandenburg become e.xtiuct; further, the archbishopric of Bremen (the city retaining its rights ami immediate relation to the empire), the bishop- ric of AVerden, the town and port of AA'^ismar with various appurtenances. These were to continue parts of the empire, of which the King of Sweden, as Duke of Bremen, AA'erden, and Pomerania, Prince of Riigen, and Lord of AA'ismar, was to become a member with three votes in the Diet; with the privilege of supreme jurisdiction on condition of erecting a court of highest instance within the territory, — which was established at AVismar; — with the power of choosing between the Aulic Council and the Imperial Cham- ber, in case suits should be brought against Sweden touching these German territories; and with the right of founding a University, for which Greifs- wald was afterwards selected (Peace of Osnahriick, Art. X.). — To the Swedish troops five million ri.x dollars were to be paid by the empire (Art. XVI.), and a secret article bound the Emperor to pay to Sweden six hun- dred thousand rix dollars, and determined the mode of payment. 2. To France were ceded the bishoprics of Metz, Toul, and Verdun, the town of Pignerol (see Treaty of Cherasco), Breisach, the landgravate of Up- per and Lower Alsace, the Sundgau, the prefecture or “ landvogtel ” of ten imperial towns in Alsace, and the right to occupy the fortress of Philippshurg. T1 ic ceded places in Alsace, the Sundgau, and the prefecture were to pertain to the Crown of France forecer and to he incorporated with its dominions (Peace of Miinst., §§ 70-76). Yet a later article of this peace (§87), hinds the King of France to leave the Bishops of Basel and of Strashurg, with all estates in cither Alsace holding immediately of the Empire, the ten imperial towns be- fore mentioned, etc., “ in that liberty and possession of immediacy towards the Empire which they had before enjoyed.” For the questions which grew out of these articles, see Do Garden, i., 213-223. 28 434 APPENDIX II. 3. A general amnesty running back to the beginning of the yrar, and a I'estitiition of the state of things in 1G24 among the estates of the Kni])ire Mere agreed nj)on. lint in I'xpress terms a numbei' of the German States had teiTitoiy eonfirmed to them, or granted by way of compensation. Thus, to the Elector of Brandenburg, for Id.s territory ceded to Sweden, were as- signed tlio bi.'hopries of INlinden, Halberstadt, and Camin. and arelibish- opric of j\Iagdcburg, or rather the greater part of its territory, after the rights of its present administrator, the Duke of Saxony, should cease. It eaino into the hands of the Prussian House not until 1G80. Whatever ])o\ver of collation within the Bishopric of Camin, the Dukes of Hither Po- merania formerly had, M'as to go to Sweden, but the patronage held by the former duke of rurlher Pomerania, the episcopal territory, and the part of Further Pomerania not secured to Sweden, were to go to Brandenburg. Again, to Mecklenburg, in lieu of Wismar, were given the episcopal terri- ritories of Schwerin and Ratzeburg with trvo conimanderies, or benelices of the Knights of St. John, within the Diuhy, IMirau and Nemerau, the latter being jnit into the hands of the line of Gustrow, the rest into those of Schwerin. Further, to Brunswick-Liineburg, as a compensation for rights renounced to Sweden, Brandenburg, and MccdJenhnrg, was given, together with the monastic foundations of AFalkenreid and Groningen, etc., the per- petutil alternate succession in the Bishopric of Osnabriick. After the de- cease of the j)rcsent bishop, a Protestant one was to be elected from the houses of Brunswick, during whose office the Archbishop of Cologne was to c.xercisc episcopal rights, as metropolitan, but over Catholics only. The house of Hesse-Cassel received the abbey of Ilersfeld or Hirsehfeld, as a secular prineipalit)' with the sovereignty over Schaumburg and other ter- ritory formerly claimed by the Bishoj) of IMinden, an indemnity in money of GOO, 000 thalers, and an acknowledgment of its claims to a share in the in- heritance of Marburg (Treaty of Osnab., Art. X.-XV). 4. The exiled and despoiled house of the Electors Palatine recovered the lower Palatinate, with the right of reversion to the upper ; and an eighth electorate was erected in its favor, the old dignity of Elector Palatine and the upper Palatinate remaining with Bavaria until the expiration of its du- cal line. So also the outlawed or expelled princes of AViirtemberg, Baden, Xassau, etc , were restored to their pri-tine state. (Art. IV.) 5. Switzindand, long independent and disconnected from the Empire in fact, -was a(dcnowledgod to be such in right. G. d he Empernr was to he. governed bv the votes of the Diet, — which was thus conceded to he more than an ah Netherlands according to the treaty with Hol- land. u'ives up ,\lt-Brei-ach, Fi-eiburg, the fortress of Kehl, according to the stipid iti )ns of the Treaty of llyswick, which is made the ba-is of arrange- ments touching Gi'i’inany. 'I he Em[)cror eii'i'ages to restore the Duke of Bav.'iria and the Arehbisho]i of Cologne to their state bedore the war. By the Treaty of Baden, the Emperor is allowed to retain possession of the duchies of Mantua and Mirandola, and the town of Coimnachio. No treaty arrangements were made between the Emperor and Spain, the former de- laying to acknowledge the Bourbon king, and Philip V. not consenting to the dismemberment of the Spanish monarchy by which the Emperor was a gai'ier. The hnvri'>r Irenl'e^. thrro in nundier, deserve a brief notice in this place. An article of ih ' flrand .Alliance having jiromi.sed to ih'c Dutch a baii'ier a'jf.'iiiist France, the two first hariicr treaties, made October ’iO, tlCiO, and .lannary .30, 1713, that is, before the Piaice of Utrecht, between Gicat Britain and the States-Gcni'ral, contemplated ay- ment of I he garrisons, to he drawti from the counliy itself; and the first treaty, ly a sepa,rate arli.-le, gave them the hope of a('(|uiring Upper Gncl- ders anil some other ])laces. The sceond Ircaly diminished the ntimher of forts they were to hold, and said nothing of Gnelderland, which had, since the first treaty, been promised to Prussia. Both treaties pledge the States- APPENDIX n. 445 General to the maintenance and defense of the Protestant succession in England, as by law established. Both these treaties come to nothing. The third, signed at Antwerp by Austria, Great Britain, and the Dutch, November 15, 1715, provides that the latter shall transfer to Austria the Spanish Netherlands, both the ter- ritory heltl by Charles II. of Spain, and that ceded by France, — Austria engaging that they shall remain under Austrian sway and never pass over to Franco or anv other power. An army of about 30,000 men shall be maintained there by the Emperor and the Dutch; the former to furnish two thirds of the force, and the latter, one third. The Dutch shall garrison exclusively Namur, Tournai, Menin, Fumes, Ypres, AVarneton and the fort of Knock, and in common with Austria Dendermonde. They may repair and forlify the towns of the barrier, but not build any new forts without the Emperor’s consent. Ho agrees to let them occupy such forts and territory, and to make such intrenehments and inundations, beyond their frontiers, in the Austrian Netherlands, as may' be necessary in case of the invasion of those provinces. He also cedes to them Venlo and some other places in Gueldei-s, and engages to pay for the support of their troops 1,250,000 Dutch florins, liypolliecated on the revenues of the Netherlands. It is also agreeil (Article XXVI.) that ships and cargoes, going between Great Brit- ain or Holland and the Austrian Netherlands, shall pay the same duties of entry and exit as at present, until the three powers shall enter into other arrangements by a commereial treaty, to be made as soon as possible, — which treaty, however, was never effected. Great Britain confirmed and guaranteed this treaty. From the failure to make the commercial ar- rangement above spoken of Austria drew a pretext for regarding the bar- rier treaty as annulled. (Dumont, viii., 1, 24.3, 322, 458.) 1717, January 4. The triple alliance between France, Great Britain, and Holland, to maintain the treaty of Utrecht and defend one another in case of attack. France also engaged to render no succor to the Pretender and to induce him to go beyond the Alps. (Dumont, viii., 1, 484.) 1718, August 2. The quadruple alliance, concluded at London by France and Great Britain, and so called as intended to include Holland, which acceded, February IG, 1719, and the Emperor, who accepted the terms of the allianci', September IG, 1718. (Dumont, u. s., 531.) As yet no peace liad been made between the Emperor and Spain. The former was dissatis- fied with the arrangements made in Italy, especially with the giving of Sicily to the Duke of Savoy. Spain, nov/ under the influence of the in- triguing and ambitious Cardinal Alberoni, aimed to recover what she had lost by the Peace of Utrecht, and for this purpose sought to disturb the pol- itics of Fiance and England. Sicily and Sardinia are invaded by Spanish troops, but the fleet of that kingdom having been almost destroyed by the English, and the forces of both Franco and England having entered Spain, the king, finding his projects too great for his resources, gives way, dis- 446 APPENDIX II. misses Alberoni, and accedes to the alliance in 1720 (Januai-y 2G). The Dnke of Savoy liad done the same in 1718. Defensive treaties in 1721 made hy Spain witli France and Great Britain, complete the arrangements with those powers. In conformity with the (piadiaiple alliance, and with other treaties made in the same spirit, Spain renonneed the Low Countries and the Spanish jiart of Italj'; the Empeior renoimeed the monareli}- of Spain, ceded to Philip. V. hy the peace of Utrecht, and acknowledged hinr as lawful sovereign of that country; Savoy and the Emperor e.xehanged Sardinia and Sicily with one another; ami S])ain renounced its right of reversion to Sicily in e.xchange for a similar right to Sardinia. Leghorn should be a free port in perpetuity, and the Italian duchies of Tuscany, Parma, and Piacenza, where the male lines of the Medici and Farnese families were likely to become extinct, were to he regarded as male fiefs of the Empire, the investiture of which should he given to Don Carlos of Spain, etc., and in no case pertain to the crown of Spain. Thus hy the Peace of Utrecht and these auxiliary treaties, (1) a harrier was erected in favor of Holland against France hy giving the Spanish Netherlands to Austria; (2) France and Spain could never he united under one monarch hy the public law of Enroiie; (3) the Emperor I'ccovered some of the old Germanic influence in the affairs of Italy; (4) the Duke of Savoy, with an accession of power as king of Sardinia, became a stronger cheek against any designs of France upon Italy, and against Austrian predomi- nance in that peninsula. The remaining minor differences between the Emperor and Spain were discussed at the Congress of Camhray (from 1722, onward). TREATIES OF THE AGE OF ENGLAND’S MARITIME PREPONDERA.NCE AND OF THE GROWTH OF PRUSSIA. 1718, July 21. Peace of Passarowitz, between the Emperor and the Sultan, after Prince Eugene’s victory at Peterwardein and capture of Bel- grade. (Dumont, u. s., 520.) Austria came hy this peace into possession of the Bannat of Temeswar, of Belgrade, and of a portion of Servia, AVal- lachia, etc. 1721, August 30, Peace of Nystadt in Finland between Sweden and the Czar,- — one of several treaties, in which Sweden, now controlled hy the estates of the realm, made terms with its neighbors. After the death of Charles XII. and after the fall of Gortz, the intriguing ally of Alberoni, Sweden, in 1710, yielded to the King of England, as Elector of Hanover, the duchies of Bremen and IVerden (see Peace of AVest[iliaIia) for a million rix dollars (Dumont, vili., 2, 15); in 1720, February 1, to Prussia, Stettin and the lands in Pomerania between the Oder and the Pehne, etc., for twice that sum (Dumont, u. s., 21); in the same year to Denmark the rieht of toll over Swedish ships in the Sound and Belts with a payment of 000,000 APPENDIX II. 447 rix dollars, promising: also not to interfere as to Selilesn-ig and (lie Duke of llolstein-dottorp, in consideration of Denmark’s abandonment of its Su'edisli conquests. (Dumont, u. s., 20.) To this peace Eranee and Eng- land were guarantees. In the Peace of Nystadt (Dumont, u. s., 3G), Sweden c(*ded to llnssia Livonia, Estlionia, Ingeiinanlaml, part of Carelia, liiga. Revel, Wihorg, with other towns and forts, the isle of Oesel, etc., and re- ceived liaek other )iarts of Finland which Peter the Great had conquered, with two million rix dollars. Sweden enjoyed ]ieaco fur some time after- wards, hut fell thenceforth in political importance below Prussia and Russia. 1735, October 3. Preliminary treaty of Vienna, definitively signed No- vember 18, 1738, between the king of France and the Emperor, to which the kings of Sardinia and of Spain, and the actual occupant of Naples and Sicily, Don Carlos, acceded. By this treaty the Duke of Lorraine, upon the impending extinction of the Medici family in the male line, was to be constituted Grand Duke of Tuscany, with right of succession in his family; and the exiled King of Poland, Stanislaus Lescinsky, father-in-law of Louis XV., having abdicated his royal office, was to be put in possession of the duchy of Bar, and of that of Lorraine also when the above-mentioned transfer of its duke should take effect. On the death of the Polish king these duchies were to be united to the kingdom of France. Naples and Sicily, with the i)orts of Tuscany possessed by the Emperor, were ceded to Don Carlos, eldest son of Philip V. of Spain, by his second marriage with Elizabeth Farnese, who thus founded the second, or Neapolitan, line of Spanish Bourbons. The King of Sardinia gained the territory of Novara and Tortona as fiefs of the empire, with the territorial superiority in the dlsti ict of Langhes, and the Emperor acquired Parma and Piacenza in full property. Fi-ance guaranteed the Prar/ina'ic Sanction of the Emperor Charles VL, and most of the powers of Europe at different times did the same thing. By this sanction, having no male heirs, he constituted his eldest daughter the inheritor of the entire mass of the Austrian monarchy, and for the sake of it consented to the abandonment of a large portion of his dominions in Italy, as well as to the incorporation of Lorraine in France. (Wcnck’s Codc.x Juris Gent.,” i., pp. 1-88.) 1742, June 11. Preliminary Peace of Breslau, and July 28, definitive Peace of Berlin between Frederick II. of Prussia and Maria Theresa. Aus- tria ceded all Silesia, lower and upper (not itu hiding the. principality of Tcs( hen, the town of Troppau, the tract beyond the Oppa, and (ho jMora- vian disiricts cnclo.sed in Upper Silesia), together with the county of Glatz. I'rederick to jiay the interest on the late Emperor’s Silesian debt; and re- ligion to remain as it was. The Peace of Dresden (December 25, 1745) confirmed that of Bre.slau, and Fredciack acknowledged Maria Theresa’s husband,lhe Gi-an 1 Duke of Tuscany, as Emperor. An act of the King of England guaranteeing Silesia to Prussia, accompanies the treaty. A treaty 448 APPENDIX II. between Saxony and Prussia, made at the same time and place, Fecimed ihe payment of a million rix dollars from the former to the latter, with other advantages. (Wenek, i., 734 et ser/.. ii., 191 e/ xf'/-) 1 748, April 30. Preliminary, and, October IS, definitive Peace of Ai.x- la Chapelle, between France, Great Ei itain, and Holland — Sjiain, Austi'ia, Sarilini a, Genoa, IModena being accessaries. (Wkmck, ii., 310 e/ This peace ended the war, which grew originally out of the Ansliian succession, l)y a mutual restilu'ion of eomj'aests, and general renewal of former ini- |)orlant treaties. ’J'he dneliies of Parma, Piacenza, and Guastalla were assigned to the Spanish infante Don Philip, atid were ceded by tlieir present jiossessors, the Empress and the King of Sardinia (the latter as holding by the Treaty of IVorms in 174 3 the city and part of the duchy of Piacenza), with the right of reversion to the said present possessors in case Don Philip should die without male children, or in case Ihe King of the Two Sicilies should iidierit the throne of Spain. Among the renewals of former stipula- tions, that of the assiento contract (see Treaty of Utrecht) was expressly named, a misunderstanding concerning which had been one of the causes of the war with S[)ain on the part of England in 1739. “ Never, perhaps,” says Lord Mahon, sjieaking of this peace, “ did any war, after so many great events, and so large a loss of blood and treasure, end in rejdacing the nations engaged in it so nearly in the same situation as they held at first.” 1759, October 3. Treaty of Naples between Austria and Charles III. of Spain and the. Two Sicilies, The Two Sicilies can never be united to the crown of Spain, except in case the lino of Spanish kings of the present house shall he reduced to one person, and shall then be separated again, as soon as a prince shall be born who is not king of Sjjain, nor heir pre- sumj)live. (Wenck, iii., 200.) 1701, August 15. Treaty, at first secret, between France and Spain, known as the Family Comj)act, to which the accession of the King of the Sicilies, and the Duke of Paiana, the Spanish king’s two sons, was to be procured, but no one except a Bourbon .should be invited to join in it. This treaty bound the j)arties to a very close offensive and defensive alli- ance, with the furnishing of a definite number of troops on demand of cither party, and contemplated a guarantee of the dominions of each, and of the two other Bourbon sovereigns. (Wenck, iii., 278 et scq. ; Martens, ‘‘lle- cueil,” i., lG-28.) In a scoret convention of the same date it is said to have been stipulated, that if France should still be at wmr with England on the 1st of May, 17G2, Spain shou'd declare war against the latter, and that France should at the same time restore Minoi'Ca to Spain. 17G3, February 10. Peace of Paris, between France, Sjjain, England, and Portneal, and — 17G3, February 15, Peace of Ilubertsburg (a hunting chfiteau near IMeis- sen in Saxony). By the first, the great contest between France and Eng- land, all over the world, to which Spain and Portugal became p.arties, was APPENDIX II. 449 closed greatly to the advantage of England ; and by the seeond, the seven years’ war of Austria and its powerful allies against Frederick the Great. Of these allies, France, against its immemorial policy, had, in May, 1756, become one. By the Peace of Ilubcrtsburg, Prussia ended the war with no loss of ter- ritory, standing where she stood after the treaties of Dresden, Berlin, and Breslau. By the Peace of Paris, England, which had stripped France of a consid- erable part of her colonial possessions, retained many of them, and received a large accession of power, especially on the western continent. In North America, France renounced her pretensions to Acadia, ceded Canada, Cape Breton, and the islands and coasts of the St. Lawrence, retaining the right of fishery on part of the coast of Newfoundland, according to a stipulation of the Treaty of Utrecht, and also the same right in the Gulf of St. Law- rence, three leagues away from British coasts, and at a distance of fifteen leagues from Cape Breton. The islands of St. Pierre and Miquelon also were to he retained by France, as shelters for her fishermen, but might not be fortified. The Canadian Catholics were to be left free to enjoy their re- ligion. (Articles IV.-VI.) The middle of the Mississippi, from its source to the Iberville, and a line thence, through Lakes Jlaurepas and Pontchartrain to the Gulf of AIc.xico, were to bound the territory of the two nations. Only New Orleans, on the eastern hank of the Mississippi, was to remain French. (Article Vll.) By a secret treaty with Spain, of November 3, 1762, France had already ceded ].,onisiana and Now Orleans to that kingdom, but jiossession of them was not taken until 1769. This was a set-off for Spain’s cession of Florida to Great Britain, which had been already decided upon, and which this peace concluded. (Article XX.) Great Britain agreed to re- store to France, Guadeloupe, Mariegalante, Desirade, Martinique, Belleisle, St. Lucia, and received, by way of cession, Granada, St. Vincent, Dominique, and Tobago (.Articles VIII. , IX.), in the West Indies. In Africa, Goree was restored to France, and Senegal retained. (Article X.) In the East Indies, the forts and factories owned by France in 1749, on the coasts of Coromandel, Orissa, and Malabar, and in Bengal, were restored, and Franco engaged not to build forts nor keep troops in Bengal, and renounced all ac- quisitions made in Coromandel and Orissa since 1749. (Article XL) Dun- kirk was to be put in the condition stipulated in the treaty of Ai.\-la- Chapello and earlier treaties; Minorca to bo restored to the English; the places occupied in Germany by the French to be evacuated and restored; Cuba, as far as conquered by England, to be codeil back to Spain; the forts erected by the English, in the Bay of Honduras and other places of Spanish America, to be demolished ; but their woikmen were to be unobstructed in cutting and transporting dye or cam wood, and no right of fishery near Newfoundland was to be allowed to Spanish subjects. (Articles XII.-XIX. ; Wenck, iii., 329; Martens, “ Rec.,” i., 104-166). 29 450 APPENDIX ir. 17G8, iNIay 15. A treaty of this date, between Genoa and France, yielded up Corsica to the sovereignty of the latter until the republic should demand its restitution and pay all expenses. The oppressive Genoese goveininent of the island led to prolonged resistance, which was subdued by French troops, anil the islanders preferred to bo freed from the Genoese yoke. (Wenck, iii., 714; Martens, i., 591.) 1772, July 15. First jiartitiou of Poland, arranged in treaties between Russia and Austria, and Rus.da and Prussia, of this date, made at St. Petersburg'. The treaties, alleging as the reasons for such a step the se- curity of the neighboring states against the discords and intestine war of Poland, declare, 1. That Russia will take possession of the remainder of Polish Livonia, of the part of the palatinate of Polock which is east of the Dwina, of the palatinate of Witepsk, the two extremities of that of IMinsk, and the whole of that of Mscislav (or Mohilev). The Dwina to the point where the provinces of Polock, AVitepsk, and Minsk meet, thence a straight line drawn nearly to the source of the Driijae (or Truzec), the course of that stream and of the Dnieper, arc to be the boundaries of the part cut off toward Poland. 2. Russia guarantees to Austria a territory consisting of East Galicia and Lodomiria. 3. Russia guarantees to Prussia Ponierellia, except Dantzlc, a part of Great Poland lying westward of the Netze, the remainder of Polish Prussia, to wit, the palatinate of Marienburg with the town of Elbing, the bishopric of AVarmia (or Ermehind), and the palatinate of Culm, cxcci)t Thorn, which is to remain :i part of Poland. Poland, by this llagitious transaction, lost live million inhabitants and a third of its territory. The Diet of Poland was brought by threats to give its rights to a committee, which in August, 17 73, obeyed the will of the great powers, and consented to this dismemberment. (Martens, ii., 89 et seq.) 1774, July 21. Peace concluded at Kutschuk-Kainardji (a village of Silistria), between Russia and Turkey. Bessarabia, AVallachia, and Mol- davia were restored to Turkey, which engaged to protect the inhabitants of the two principalities in their religion, etc , to receive a chair/e d affaires from the governor or ho.'ipodar of each of them, and to allow the ministers of Russia resident at Constantinople to speak in their favor. Islands also in the Archipelag.t, taken by Russia, with places occupied in Georgia and klingrclia, were to be restored. Russia obtained free navigation for ships of commerce in the Black Sea, in the Propontis or Sea of IManuora, in the Danube, and in the Turkish waters generally. The forts of Jenicale and Kertsch in the Crimc.a.. the town of Azow with its district, the castle of Kinburn at the monlh of the Dnieper, wore ceiled to the same power. The two powers acknowledged the i'artars of the Crimea, Budjack, Ivuban, etc., to be independent. Arrangements wert! made for a minister resident of Russia at Constantinople, and for consuls with their interjireters in places of commerce. (Martens, ii., 28G. The original is in Italian.) [This treaty h.as been appealed to in Russia, as giving to the Czar some especial right of APPENDIX II. 451 protection over tlie Christian.s in tlic Ottoman Empire. Ent no sm-h can be found in tlio treaty. In Article VI 1., “ (lie Sublime Porte promises a firm proleelion to the Chri.'tian relieiou and its ebnrebes; and jjennits also tile imperial court of Russia to make on all oeeasions various re]ii'esen- talions to the Porte in favor of the undermentioned elinreli erected in Con- stantinople, notice 1 in Article XI\'.” In that arliele we read that “the most sniireme court of Russia, after llu; norm of ilie olhci’ powers, shall have ])ower, besides the domestic church (the ambassador’s domestic cha|)el), jto build one in the quarter of Galata, in the .street named Eeg-Uglii, which church shall be ])ub!ie, under the name of the Russo-Greck Church; and this shall always continue under the j)roteclion of the minister of this Em- pire, and be c.x'cmpt from alt restraint and outrage.” In Article VIII., all subjects of the Russian Empire are allowed to visit Jerusalem fnmly, with- out toll, and under passport. In Article XVI., in -which IMoldavia, etc., are restored, the Sublime Porte promises not to hinder in any way the jjrofes- sion of the Christian religion, nor the building of new, nor the repaiiiiig of old churches, to restore lo the monasteries properties taken from them, to recognize and respect the clergy, as becomes their condition. Arlicle X\']I. CO)itains the same stipulalions in regar.l to the islands of the Archipelago, now restored; and so speaTcs also Article XXVIII. in legard lo religion, churches, and monasteries in Georgia and Mingrelia, which are restored. In Article XXII. the two Euq)ires annul all former treaties, so that no claims come over from them. Such being the jnovisions of this treaty it is aston- ishing that any special protectorate of Russia, should be found in it.] 177!), May l.'S. Peace of Teschtn in Austrian Silesia, between Frederick the Great of Prussia and IMaria Theresa, Queen of Austria. (Martens, ii., CGI.) The electoral Bavarian lino of the IVittelshaeh house being near ex- tinction, the ne.xt heir was the Elector Palatine, who had no legitimate chil- dren, and the ne.xt to him the. Duke of Zweibriieken or Deux-Ponis. The Emperor Joscjih, by making brilliant provision for the illegitimate (dtildren of the Elector Palatine, induced him to cede beforehand idl Lower Ba\ aria and other territory to the house of Austria. Frederick the Great, having won over the Duke of Deux-Ponts, in connection with the elector of Saxony, and the Duke of Mecklenburg, who had claims to the Bavarian inheritance, prepared to resist this aggrandizement of Austria by armed force. The war of “ the Bavarian succession ” was a show of arms rather than a war, and led to the Pe.ace. of Teschen, of which the teians were dictated by Fiedericlc. They -were, in brief, (1.) That Aiistiia, instead of a territory of two hundred and fifty Gertnaii sipiare miles, acquiretl a di.sirict of thirty- four, between the Danube, the Inn, .and tln^ IStdza. (2.) That Prussia was confirmed in the right of succession to the piincipalities of Bairenlh and An-paeh, if the existing families .'■houM ftiil. (;!.) 'Th.a.t Saxonv received a compensation of six iniilion guilders for its claims, and iMecklenburg ac- quired the right of having a supreme coui’t of appeal of its own. The Em- 452 APPENDIX II. pcror and Empire ■were required to accede to the tj’eaty, to which also the Empress of Russia and tlic King of France were mediating and guaran- teeing parties. (Comp. § 109.) 1780, February 28. Declaration of Russia introducing tlie first armed neutrality. (iMartens, iii., loS et seq. Comp. § 189.) 1782, November 30. Preliminary, and, September 3, 1783, definitive peace signed at Paris, in which Great Britain acknowledged the independ- ence of ilie United States, and conceded certain rights of fishery. (§ 59.) Boundaries were fi.xed, debts incurred loeforc the war could be collected, etc. (Martens, iii., 495,' 553.) 1 783, January 20. Preliminary treaties of the Peace of Versailles be- tween Great Britain on the one part, and France, Spain, and (September 2, 1783) Holland on the other. Definitive treaties of Versailles, September 3, 1783, between Great Britain, France, and Spain. To France, Great Britain restored the islands of St. Pierre and Miquelon in full property, reaffirmed the French rights of fishery near and on Newfoundland, as mentioned in the treaty of Utrecht, restored St. Lucia, and ceded Tobago in the WT'St Indies, and recovered Grenada, St. Vincent, St. Domini(jue, St. Kitts, Nevis, and Montserrat. In Africa, Senegal (sec Peace of Paris, 1763) was ceded back to France, and Goree restored. In the East Indies there was a general restitution of conquests made from Franco in the war. The articles of the treaty of Utrecht and of other subsequent treaties relative to Dunkirk were abrogated. To Spain, Gieat Britain ceded Minorca and Florida; Spain restored Providence Lsland and the Bahama, and reaffirmed the right of the English to cut logwood (sec J’eace of Paris, 1 763), settling the limits within which it could be exercised. The Dutch did not make a final peace with England until May 20, 1784. The status quo ante helium was its basis, excepting that Holland ceded Negapatam on the coast of Coromandel. (Martens, iii., 503 cl seq.) 1783, December 28. A convention of this year incorporates the Crimea and the town of Taman into the Russian Empire. (Martens, iii., 707.) The river Kuban is to bo the boundary between Russian and Turkish ter- ritory. TnE.A.TIKS OF THE AGE OF THE FRENCH RE'VOLUTION AND OF N.4PO- LEON. 1791, .August 27. Declaration of Pilnitz, signed by the sovereigns of Austria and Prussia, relative to interference in the .affairs of France. (§ 47. IMariens. v., 260.) 1 792. January 9. Peace of Jassy, between Russia and Turkey. The left bank of the. Dniester is to serve as the boundary between the Iwo sovereignties. Thus the tract between the river and the Bug with Oczakow APPENDIX II. 453 became Russian. (IMartens, v., 291.) The. Porte engages to beep the neighbors of the Iliissiaus along the Kuban in order. 1 793. Second partiiion of Poland, ^v]lieh apjicars in the shape of treaties between Russia and the King and Repiiblie of Poland (Grodno, July 1 3, and October IG, the latter a treaty of allianci;), and of a treaty between Prussia and Poland (Grodno, Seiiteinber 25, 1 793). Although, in tlie. treaty of cession ami limits, Russia renounces forever all right or claim, under pre- text of any cMcnts or circumstances whatever, to any jirovince, or ilie least part of the territory now comitrised in Poland, and guarantees to maintain Poland in its actual state; yet the third parlitloii took place in 1 795, after the insurrection in 1 794 had ended in the taking of Warsaw by the troops of Sttwarrow. To this Russia, Austria, and Prussia were parties, and by a convention dated Petersburg, January 3, and October 24, 1795, they settled the boundaries between their respeelive acquisitions, which included the whole of Poland yet remaining. Austria now held all Galicia and Lodoiniria, or in general the territory between the Vistula and the Bug; Russia, Cur- land, Samogitia, Little Poland, Lithuania, Volhynia, all the territory east of the Bug and Niemen ; Prussia, that west of the Niemen and of (he Vistula, including Dantzig, Thorn, and Warsaw, the old capital. (Martens, v. , 531 el seq.; vi., 1G8 el seq.) 1792 and onward. Coalition against France, into which all tln^ states of Europe successively entered, exccjit Sweden, Denmark, Switzerland, Tus- can}', Venice, and Genoa. A particular grievance on the part of the Ger- man Empire was the disregard shown by the Constituent Assembly for the rights of princes of the Empire holding lor(Lhi[)S in Alsace, besides which the fear and dislike of French revolulionary princijjles, especially after the death of Louis XVI., January 21, 1 793, acted on all. In the course of the war republican France conquers the Austrian low countries, Holland (which is revolutionized and becomes an ally). Savoy, and other territory on the frontiers, Lombardv, IModena, and the legations of the Papal state; con- stitutes the Cisalpine Republic; forces a number of its foes to a suspension of arms or to peace and alliance; and i-s stripped, together with its con- federate, Holland, of foreign possessions by the naval power of England, which also annihilates the fleets of Holland and of Sjwin. Spain made peace with France iu 1795, and became an ally by the treaty of St. Ilde- fonso, August 19, 1 796. The most noticeable treaties, by which this grand coalition was weakened or broken, were those of France with Prussia and with Austria. Those with Sardinia and with the Pope also deserve men- tion. 1795, April 5. Peace of Basel between France and Prussia. Prussia promises to furnish no aid to the enemies of the French Republic, nor to allow them a ])assage through her terrilories. Fi’cmdi troops may coniinuc to occupy territory on (he left bank of the Rhine bedonging to (he Piaissian king, until a general pacification shall take place between the Empire and 454 APPENDIX II. France. The two contracting parlies will unite their efforts to remove the theatre of war from the noi’tli of (Ji'niiaii}-. 'I’lio republic will aeeej)t of the good ofliees of the King of Prussia in favor of pi'inees of the. Empire who seek his intervention, in ths desii'C of niaking peace with France, and will regard a,s neutrals those, ])rim'es and estates west of the Uhine, in favor of whom the king sliall intercede. By a treaty of May 17, made by the same powers, at the. same place, a line of demarcation was draun through the middle of Germany, and the Fiench engaged to regard as nenti-als those states lying to the north of this line, who should obseiae a stiiet neutrality, as well as those on the right bank of the Main situated widiin the line. Four routes were left open for French and Gertnau troops along the Rhine by way of Frankfort, ami along the, right bank of the Main. — This treaty gave up the left bank of the Rhine to France, separated the North from the South of Germany, and placed Prussia in a position to profit by any changes which might be effected in the Empire in consequence of French compiests. (Martens, vi., 45-02.) 1795, July 22. Peace between France and Spain, made at the same place. 'Idle French restore the places beyond the Pyienees occujiied by French troops, and Spain cedes to France the Spanish ]iart of St. Domingo. The Freiudi Republic is thus acknowledged by the Rom bun house of S[)ain. (Jlarten-;, \ i , 121) 1 795, No\'ember 19. Treaty between Great Britain and the United States. See 124, IGS. 179G, iMay 15. Treaty of peace signed at Paris between the King of Sai'dinia and the French Re|mblic (Martens, vi., 21 I), by which the former renounces the coalition; cedes to France Savoy, with the counties of Nice, Tende. and Penil ; agrees njion the boundary iine between the two states; engages to e.-cclude Ficnch emigres from his territories; gi\es the rieht of transit to French troo]is through his lands to and IVom Italy ; and suffers a number of important fortres.'Cs to be occupied, until treaties of commerce and of general jieace shall be complete 1. d'he Batavian Republic is com- prised in this and other treaties, in accordance with a. jrrovisiou in the treaty of alliance between the two republics, signed at the Hague, May IG, 1795 (Martens, vi., 88), that no peace can be made by France with any of the coalitionists, in which the Republic of the Uniteil Provinces shall not be in- cluded. 1797, February 19. Treaty of Peace between France and the Pope, s'gned at Tolenlino (in the P.ipal State, and in the delegation of iMaccrata). 'i’hc terms had been ad juste 1 in part in the; suspension of arms made, at Bo'ogna, June 23, 1 79G. (IMarteiis, vi., 239, 241.) 'J'he. Po])e agreed to I'enounce. the coalition, to ceile Avignon and the. Yenaissin (§ 5G), as well as the legations of Bologna. Fei'rara, and Romagna, to France, to allow Ancona and its territory to be occiqvied by French tr.jojes until the event of a continental peace, to pay thirty-one millions of livres besides five already APPENDIX II. 455 paid since tlie armistice, to hand over a hundred works of art and five hun- dred luamiscripts, etc. 1 797, April 17. Preliminaries of a peace between the French Keptihlic anil ilie Einjreror, agreed lo at Leobeii, a small town in Styria. 'J’he defin- itive peaee followaHl, made and signed near Campo Formio, in Friuli, Oe- tolier 1 7, 1797. (Martens, vi., 385, 420.) In this im[)ortant treaty (1 ) The Austrian Netherlanels are ceded lo France. (2.) Yeniee having been lately extinguished by Bonajrarte, its territory is divided between the contracting parties and the Cisalpine l!e[)nblie, I'Stablished June 29, 1797. The French take the Venetian islands in tlie Levant — Coifii, Zante, Cejihaloni i, Santa klaura, Ceiigo, etc., and in general all the Venetian establishments in Al- bania situated below the Gulf of Lodrino; and the Austrians lake Islria, Dalmatia, the Venetian islands of the Adriatic, the mouths of the Cattaro, the eily of Venice with the lagoons, and its teridtory on the Italian main- land east and north of the Adige and the Lago di Garda. (3.) The Em- peror acknowledges the Cisalpine Ivepublic, and renounces all claims which he may have had before the war to territory incorporated into it. This republic includes Austrian Lombardy, the districts of Bergamo, of Brescia (both Veneti in), and of Cremona, Mantua with its forire.«s and district, Peschiera, the jiart of the Venetian ])o?sessions in Italy lying to the east and south of the lands newly ceded lo Austria, Modena, Massa, Carrara, the legalions of Bologna, Ferrara, and Romagna. Bonaparte had already severed Chiavenna, the Vallelline, and Bormio from the Grisons, and in- vited them lo join the Ci alpine Repnhlic. (4.) The Emperor binds himself to cede to the Duke of Modena the Breisgau, as an indemnity foi- his former possessions in Italy. (5.) There shall be a congress held at Rastadt, to he composed of plenipotentiaries of Fiance and the Empire, in order to make peace between these powers. (G.) In secret articles agreed upon at the same time, the Emperor consents that the left bank of the Rhine from Switzerland to the Nctte above Andernach, comprising the tele de pant of Itlannheim, and the towm and fortress of Mainz, shall belong to France, and engages to try to induce the Em])ire, in the congress to be assembled, to agree to this lino of honndary. The Emperor also ]iromises, when a jieaeo wiih llu'Emjnre shall be made, to cede to France the Frickthal (in the can- ton of Argaii, Switzei'land), and other conlignons po-sessions of Austria, in order to he united to the Ilelveli in Re|)ublie. lie also cedes to Franco the county of Falkenslein. Fi'anee, on the other hand, will endeavor to procure for the Fmporor the bi^hI)]lric of Salzburg, and the part of Bavaria lying between that bishopric, the Inn, the Salza, and T3rol. In ease the territory of Prinsii beyond the Rhine shall be restored to her, which the Fremdi are willing to do, she shall have no claim to new acquisitions. In- demnifications are to be made to estates of the Empire, who shall ha,\ o lost territory by this jieace, or by the contemplated peace with the Empire. The Congress of Rastadt was opened December 9, 1797, and closed with 456 APPENDIX n. no definite result in April, 1799. For the atrocious murder of two of the Frcneh iiegotiatoi s on their way home, comp. § 9G, n. Between these dates Switzerland, Koine, and Naples had been transformed respectively into the Ilelvelie, Homan, and Parihenopajan republics, the two last of which were almost as short-lived as Jonah’s gourd; the King of Sardinia, worried out by Frcneh aggressions, had renounced his authority in Piedmont, in favor of a provisory government, and gone over to the island of Sardinia ; an expedition under Bonaparte had been sent to Egypt; and Austria had de- cided to join a second coalition to which Russia, England, Naples, and Turkey were parlies. The French were almost driven out of U])per Italv by Suwarrow; Rome and Naples were rescued from their sway; but the withdrawal of the Emperor of Russia from the alliance, and the great vic- tories of Bonaparte, now First Consul, at Mai-engo (June 14, 1800), and of ]\Ioreau at Iluhenlindcn (December 2, 1800), disposed Austria to jieace. 1800, Uccember IG. Conventions of Russia with Sweden and Denmark, and on the 18th of Decembei-, with Prussia, constituting the. second armed neutrality. The affair of the Freya (§ 209), following Sir William Scott’s decision in the e.ase of the Maria (Robinson’s Rep., i., 340-379), which denied the light of convoy and condemned the vessel, led to this new at- tempt to establish by force the principles of international law. A conven- tion was made, August 29, 1800, between Great Britain and Denmark, reserving the ipiestion of convoy, and restoring the frigate with the vessels under her jiroteclion. Then grievances of his own induced the Emperor Paul lo lay an embargo on British \ essels. After the armed neutrality, the British Government hiid .a counter-emliargo on the shi[)s of the three north- ern powers. (January 14, 1801.) The affair at Copenhagen ne.xt iook place, and was followed by an armistice with Denmark. 'J ben, in June, the conventions spoken of in § 209 took jilace, which, in the form of a con- cession, yielded no important claims of Great Britain. Comp. AVheaton, “ Hist.,” part iv., §§ 7-9. (Martens, “ Rec.,” vii., 172 et seq., 2G0-281.) 1801, February 9. Treaty of Luneville between France and the German Emperor, acting also, without previous authority of the Diet, for the Em- pire, which ratifunl the peace soon afterward. (Martens, vii., 29G.) In this treaty several of the imiiortant stipulations of the Treaty of Campo Formio are repeated. The Emperor cedes the Austrian Netherlands, the Fricklhal, and the county of Falkenstein ; the division of Northern Italy is the same, except that the Adige from the point where it leaves Tyrol to the sea, is to be the wi'stern limit of Austrian territory ; the Duke of IModena is to have the Breisgan as before; indemnifications are again mentioned as to bo made by the Einjiirc for ])rinees whose territories had been ceded to Franco. The left bank of the Rhine, ” from the place where it leaves the Helvetic territory to where it enters the Batavian,” is to bo Freiudi. The Grand Duke of Tuscany, the Emperor’s brother, it is agreed, shall renounce his duchy and the parts of Elba depeudent upon it, in favor of the Duke of APPENDIX II. 457 P.irma. and phall be paid off b}- an indemnity in Germany. The treaty is deeiared to embrace the Batavian, Cisalpine, Helvetic, and Ligurian repub- lics, the indcpenilcnce of which is guaranteed by the conlraciing jiartics. Fiefs of the E iipire had already been given by the Ti'caty of Campo Formio to the Ligurian Rej)ul,lic. These (iefs are now renounced by the Linjieror for himself and^he Empire. The arrangements respecling- the Duke of Parma had already been a sub- ject of migotiation between France and the King of Spain, whose son-in- law the duke was. It tvas agreed by the Treaty of St. Ildefonso, of October 1, ISOO, that Parma and Louisiana should be ceded to France, and by the Treaty of Madrid (March 21, 1801, Martens, vih, 33G) it was agreed, as in the Pe.aee of Luneville, that the dukes of Parma and Tuscany should resign their duchies, tliat the former should take possession of Tuscany willi the title of king (afterward called King of Etruria), and that lie should cede to France the part of the island of Elba belonging to Tuscany, and be com- pensated for this bj' Piombino, then pcrtainitig to the King of Naples. 1802, Jlai’ch 27. Definitive Treaty of Peace of Atniens, between Great Britain on the one part, and the French and Batavian republics and Spain oti the other. The preliminaries had been signed at London, October 1, 1801. Englatid renounces her conquests won from the three power.s, except Trinidad and Ceylon, which are ceded to her by Spain and the Batavian Republic res[)ectively ; Malta is restored to the Order of St. John of Jeru- salem ; the territories of Portugal and Turkey are maintained in their en- tirencss as they were before the war; the boutidaries of French and Portu- guese Guiana are rectified; the Republic of the Seven Ionian Islands (taken from France by the fleets of Russia and Turkey, in 1798 and the next year) is recogtiized ; a fair compensation is promised by France to the hoitse of Orange for its losses in the Netherlands; and the troops of France are to be withdrawn from Rome and Naples. — The Peace of Atniens was a mere truce. IVar was again declared between England and France in a little less than a year. (IMartens, vii., 377, 404.) 1803, February 25. Rcces or report of an extraordinary committee of the Eui])ire (Ri ichsdoputalionshatiptsi hluss), ratified by the Diet, IMarch 24, atid by the Emperor, April 27. (ilartens. vii., 435 et setj.') Several trcatii'S, that of Luneville last of all, hail contetnplated the giving of in- detnuilica ions to dispossessed German piinces, an 1 several foreign princes wei'e to hi‘ provided for in Gcrtnany who had lost their own lands. At the Congie-scf Rastadt this was a leading subject of negotiation, and it was agreed to make the indemnities by tneaus of secularized ecclesiastical ter- ritory, blit the congress broke up without anything being acconiiilisbed. To Iiring this matter to a conclusion, the Diet a|apoitiied (October 2, 1801) a (leputition or committee of eight inetnbers, four of them electors and four not, before whom came the first ])lan of indetntiity, offered by Fraticc and Russia as mediating powers, and who, after several sets of changes in the 458 APPENDIX II. project, presented the report which the Diet adopted. It was in truth little else than a loniiality, I'oi' the whole seheine dej)ended on the will ot Xapo- h'oii, wiih whom Kussia now aeleil ; and wliile the eomniiitee was sitline', the leadiiig ]iowere, or Iho.-e who were in his |j;ooil graces, got by sjieeial treaties beili'r terms of indemnity in many ease.s than ihey had a. right to demand. 'J'his traiisaidion was in effect a change in ihe Constitution of Cermany, but it loses its inlerest and importance from the fact that ihe old Empire tumbled to the ground a little afterward. By this measure, (1 ) All immediate church teri'itory was secularized c.KCcpt a little jiart of that of Mayence, and, (bis not snilicing, all but si.K of the (irty-one imperial towns, and the villages of the same class lost their immediacy and were put into the hands of jirinees who iecci\ed compensation. 'J'he archbisbojis of Cologne and 'I'liers thus lost with their tei'i itoi'ies their electoral dignities. The see of jMa^eiiee was transferred to Ratisbon, the archbishop of which W'as always to be arehchancellor, primate of Germany, and one of the electors, and to be the metropolitan over the former provinces of Mayence, Cologne, Triers, and Salzburg, d'he six towns remaining as estates of the Einpire were Augsburg, Nuremberg, Frankfort, Ilamlinrg, Lfibcck, and Bi'cmcn. (2.) Of th.e great number of princes for wdiom indemnification was ihns found, we can name only a few. To (he Duke of Tuscany (see Treaty of Lnneville) was assigned the archbishopric of Salzburg, Eerchtes- gaden er.closed in Salzburg, a territory under a prince-provost, part of the bi.'-ho|)rie of Passan, and most of that of Eichstadt. To the Duke of IModena (see 'I'l eaty of Campo Formin) the Breisgau and the Ortenan. To (he Pi ince of Nassau-Dillenbnrg, former Stadtliolder of Holland (see Tieaty of Amiens), through (he intervention of Piaissia, the bisho[)ric of Corvey, Dortmund, and various abbeys. To Austria, in lieu of the Ortenan conveyed to (he Duke of IModena, the bisliojjrics of Trent and Brixen. 'J’o the King of Prus- sia, in lieu of Guelders and Cloves, lying west of the Rhine, the bishoprics of Ilildeshcim, Paderborn, and in part Miinster, with several to'wns and abbeys. To the King of England, as Elector of Hanover, for his claims on territory aw'ardehnpric of Osnabnrg. To the Elector Palatine of Bavaria, in lien of Denx-Ponts, Jnliers, etc., the bishopi'ii s of Bamberg. Frei-'^ingen, Augsburg, and in paid Passan, the prop- erties of ec(desiasticai foundations in the city of Augsburg, various abbeys, and as many as seventeen towns or villages of the Empire. To the Duke of \'i’iir;cnd)erg. the ])i'ovostship of Ellwangen, nine, i njicrial towns, and seven ablicys. To the Margrave of Baden, llie bishopriit of Constance, binds t’ast of thii Rliiiie pertaining to the bishoprics of Basil, Strasbnrg, and .‘Spires, a. part of the p datimite of the Bhine, wdtb Hcididbcrg and jMamibcim, ten abbeys, seven towns, etc., by which bis territory wars nearly doubled. To llesse-Dai’instadt the duchy of IVestphalii. with some dis- tricts of Mi'.ycnce and of tin; Palatinate, d'o Ilesse-Cassid, a sii'.idl jiart of the territory of Mayence. To the Duke of Holstein-Oldenburg the bishopric APPENDIX II. 459 of Liiheck (.1 Protestnnt territory), and fonic lands in ITnnovcr and l\Iiin.ster. (3.) A mindier of iHMV votes in llie eoUeiie of princes were ci eaU'd. '1 lie electoral dieiiity was wiven to llie Duke of 'J'nseany. to Baden, W’iirlendjere', and Ilesse-Ciissel (with reversion to nesse-l.)arnistadl). wliiie the electoral office of the archbishops of Cologne and Triers fell with the sccidarizatiun of their territories. 1S03, April 30. Treaty signed at Paris between the French Republic and the United States of America, touching the cession of Louisiana. By a secret treaty of ISoveinber 3, 17G2, signed at Fontainebleau and (irst pub- lished in 183G, France ceded to Spain Louisiana and New Orleans. By the Ireaty of St. lldefonso (October 1, 1800), Louisiana was retroceded by Siiain to France (see Treaty of Madrid under Peace of Lnncville, 1801), as part of an cipiivalent for ibe establishment of the Duke of Parma in Tusc-any. Napoleon now, in the ap])rehension, it would seem, that Lngiand might take possession of this territory, conveys it to ihe United Stales, ‘as fully and in the same manner a.s it had been acipiired by the Fi'ench R.r|nib- lic.'’ The thii’d article of the Treaty of St. lldefonso had conveyed it to France, “ with the same c.xtent that it now has in the hands of Spain, and that it had when France possessed it, and such as it should be, after the treaties subsetiuently entered into bctw'cen Spain and other states” — which treaties would relate to the recognition of the Duke of Parma as King of Etruria. 'J'hus the limits of the ten itory conveyed to the United States are not defined by a single W'ord. The inhabitants were to be admitted, as soon ns possible, to the enjoyment of all the rights, tidvantages, and im- munities of citizens of the United States, and in the mean time to be ]iro- tccted in the enjoyment of their liberty, [iroperty, and religion. 'I'he treaties made bv Spain with the Indians were to be e.xecuted by the United Stales. Ships of France and of Spain coming from those respective countries or their colonies, and laden with their ]iroducts or those of their colonies re- spectively, and the vessels of no other nations, shall be admitted for twelve years into the ports of entry of the ceded territory. By two conventions of the same date it is agreed that the United Stales shall pay France, by the first, a sum of sixty millions of francs (Si 1,250,000, at the rate of 5^- francs to the dollar), and by tbe otber a sum which cannot exceed 20 000 000 francs, and which is intended to cover the debts due ‘‘ to citizens of the United States who are yet creditors of France for supplies, for embargoes, and for prizes made at sea, in which the appeal has l;een properly lodged, within the lime mentioneil ” in the convention of September 30, 1800, etc. The treaty is signed in English and French, but ihi; original is declared to be in Frencb. Itwas ratified at AVashington, October 21, 1803. Do Gaiilen (viii., 50) informs us that S|)ain, in the treaty of cession to France, reserved the preference or refusal to herself, in case France should allow the terri- tory to ])ass out of her hands. All claim from this source was cut off by the consent of Spain to the alienation, which was given early in 1804. 460 APPENDIX n. (^larten?, vii.. cntl.) Tlic treaties of 17G2 and of St. Tldefonso are given by l)e Garden, n. s. The latter at least is not in l)e Martens. 1805, December 20. Peace of Presbnrg, between Austria and France. (IMarteiis, viii. , 388.) In 1802 (Seiitembcr 21) Piedmont was united to Fi'anc(! — all that ])art of it at least wbicb bad not been incorporated in ibe Cisalpine l!e|mblie. In 1803 war was again declared by England agtiinst France, and in revenge, the electorate of Hanover, altbougb a German state, was occupied by Fiencb troops. In 1804 (iMareb 21) tbe Duke d’Engbien was seized on German territory — -in Baden — and murdered after a pro- tended sentence. Tlie ilelay of Napoleon to provide compensation for tbe King of Sardinia, togefber with tbe criminal violations of German territory above mentioned, facilitated a new coalition between England, Sweden, anil Russia, to wbicb .Austria gave ber adliesion in 1805. Meanwbile Na- poleon bad become Emperor of tbe Frencb in 1801, .and in IMareb, 1805, King- of Italy — wbicb title of Kingdom of Italy tbe Cis.alpinc Republic bad now taken. Lucca bail been made a bereditary principality ; tbe Ligurian Rej)ublie bad been united toFi'ance; Parma, I’iacenza, and Guastalla bad lieen declared Freiudi territory by a simpli; decree of tbe Emperor; and two of bis creatures, tbe dukes of AVurtemberg and of Bavaria, bad of ibeir own movement taken the title of king. The war wilb England, which did not end until tbe Peace of Europe in 1814, put a stop to tbe disastrous attempts of Bonaparte to recover St. Domingo, annihilated the fleets of France and Spain at the battle of Trafalgar, and gave the possession of a number of French colonies to the English. The war with Austria was decided, in a short campaign, by tbe capitulation of Him and the battle of Austerlitz. In tbe Peace of Presburg, wbicb soon followed, (1.) Austria recognized tbe arrangements made by France in It.aly, including the union of territory to France — as in the ease of J’iedmont, Genoa (the Ligurian Republic), Parma, and Piacenza — and the new government organized in Lucca and Piombino. (2.) .Austria renounced the part of tbe Republic of Venice ceded to her by the treaties of Campo Formio and Lnneville, which was to he united to the kingdom of Italy. The Frencb Emperor was also recognized as King of Italy; but as tbe crowns of France and It.aly were eventually to be sep- arated, tbe Emperor of Germany engaged to recognize tbe successor whom Napoleon should name King of Italy. (3.) 'I'be electors of Bavaria and AViirtembcrg having taken the title of king without leaving tbe German con- federation, they are lecognized by Austria in that quality. (4.) Austria cedes and gives up to the King of Bavaria the iMargravate of Burgau, the principality of Eichstadt, part of Passau, Tyrol, including Bri.\en and Trent, A^orarlberg, and other territory. To the King of AViirtemberg are ceded the five towns of tbe Danube so called, tbe upper and lower county of Hobenberg, and other teridtory. To the Elector of Baden, tbe Breisgau and the Ortenau, the city of Constance, anil tbe comniandery of IMeinau. These three powers shall enjoy, it is agreed, the same full sovereignty wliich APPENDIX II. 461 the Emperor and the King of Prussia have in their estates. (5.) Salzburg and Berehtesgaden, which had been given by the Peace of Liine\ ille and the I'eport of the deputation of the Empire, to the Ditke of Tuscany, aie now taken from the Arebduke Fcnlinand and incorpoiaitcd in tbe Atistrian Empire. As an equivalent, he is to have the principality of Wiirzburg, which the French Emperor engages to obtain for him from the King of Bavaria, attd the electoral dignity attached to Salzljurg is to be transferred to this new territory. (6.) 'I'he contracting powers di>pose of two (ierman estates in a very summary way. The city of Augsburg is put into the hands of the Bavarian king ; and the office of Grand Master of the Teutonic Order, with its rights and domains, is transferred to some prince of the house of Austria, whom the Emperor shall designate, and in whose male line it shall descend. This humiliating Peace of Presbiirg, by which Austria lost 2.3,000 sqttare miles of territory and almost 3,000,000 of inhabitants, was a piclude to the complete overthrow of the German Empire. In 1806, Jubj 12, was signed at. Paris the Confederation of the lihine (liheiubund), consisting originally of the kings of Bavaria and Wiirtemberg, the grand dukes of Baden and Hessc-Darmstadt, the Prince Primate of Germany (see llcpjrt of Deputation of Empire), the Duke of Berg, the princes of Nassau-Usingen and Nas- sau-Weilburg, and many smaller princes. (Martens, viii., 480 ct seq.) To these, in time, were added the Elector of Wurzburg — the Emperor’s brother — (see Peace of Preshurg), the Elector of Saxony (who had leave from Napoleon in December, 180G, to call himself king), the dukes of Olden- burg and Jlecklenburg; so that (llermany was now split up into three parts: Austrian, Prussian, and French Germany. The Confederation of the Bhine was mailc known to the Diet August 1, 180G, and the members renounced their connection with the German Empire — as the league had provided; soon after which (.\ugust G), the Emperor published an act declaring the Em- pire extinct, laying aside the crown and absolving all from their allegiance. He was henceforth Emperor of Austria only, a title which he had assumed two years before. The Rhenish League Avas to have its own diet at Frank- fort; to form an alliance for all continental Avars, offensive and defensive, Avith France ; to rtetermine the contingents of the members, etc. Many estates of the old Empire Avithin the territoiy of the confederation were mediatized, or brought under the soA'ereignty of some one of its members; thus Fi-ankfort and Nuremberg lost their independence, and the race of knights holding immediately of the Empire (Reichsritter) Avas e.xtinguished. 1807, July 7. Peace of Tilsit, made by Russia, and July 9, by Prussia, Avith Napoleon. (Alartens, viii., G37, GGl.) After the Peace of Prcsbnrg, Napoleon proceeded still more boldly in his aggressions and plans of ag- grandizement. The Bourbons Avere declared to reign no longer in Naples, and his brother Joseph Avas made king there; Holland Avas converted into a kingdom for another brother, Louis; his sisters received principalities in 462 APPENDIX II. Italy; Murat was made Grand Duke of Berg; and a plan of creating an im- perial nubidty out of liis generals and eourliei’.s, with estate's provided from the conquered lerrilory, was vigorously pui'siicd. Toward Prussia and its vacillating king he pursued a course of mingled insidt and craft. lie look Anspach into his own hands before a treaty permitted it; he persuaded the king to give uj) Cleve and AVescl, which were given to Murat, on whom also Ijcrg, ceded by Bavaria, was bestowed; he rctpiircd him to occupy Hanover, thus leading the way to a collision between Prussia and England. 1 lie counsels of the jiatriotic jiarly so far prevailed in Prussia, ih.at war was inevitable; but the aristocracy was debased, the king was weak, the svstem of war was antiquated, and the result was the utter prostration of the country. J he campaign of 180G, by the battles of Jena and Auerstadt, and by vai'ious ca|)ilulalions, made Napoleon master of most of German IruSsia; he entered Berlin, and there issued bis decree called by the name of the ciiy, in pursuance of his continental svsti'in. ( § 20G.) In the autumn of ISOG his troops penelratcd into Prussian Poland, whei'e French agents had stirred up an insurrecliou, and in 1807 the Ivussiaus, Prussia’s only hojie, were dctcalcd at Lriedland. The whole kingdom was now overi’un and compiered, and the king sued lor peace. 'J he conferences were at- tended in person by Napoleon, by tbc Czar, and, after tlie first interview, by the King of Prussia; and the result was that Alexander, fascinated by the genius of Napoleon, and guided by him in his views of his interests, liraelically abandoned his ally, who was thus forced to accept of the most humiliating terms ])ossible. By the Peace of J'ilsit, I’russia renounced all its lerrilory on the west of the Elbe, inchidiug Hanover — which jmovinces, with others in Napoleon’s hands, were to constitute a kingdom of A^’est- phalia under Jerome Bonaparte — and renounced also the lands acquired by the second and third jvartitions of Poland, with the southern jiart of AVest Prussia. Tliese Polish ])ossessions constituted into a duchy of AV'ar- saw — except the district around Bialystock, which passed over to Russia — together with the circle of Kotbus in Lower Eusatia, were ceded to the King of Saxony, who was to be made Grand Duke of Warsawq and wdio wuas to have the u-e of a military road across Prussia betw'cen Saxony and Poland. Dantzig, it w'as agreed, with two leagues of territory arouni! it, shou’d be an independent district under the protection of Prussia and Saxony, with its ports closed to English commerce during the present mari- time war with England. The rest of its former territory wms restored to Prussia, wdiii h thus retaineil about half of its population of 10.500,000. It W'as obliged to recognize also Napoleon’s new crtuitions, the Rhenish Con- fi'ileration, the kings of AA^estphalia, Naples, and Holland. By conventions made in 1808 (Martens, “Nouv. Rec.,” i., 102, onward), Prussia was forced to pay one hundred and forty millions of francs “ for extraordinary con- ti'ibutions and arrears of revenue ” — which afterward were drojtped to one hundred aud twenty millions — and to leave the forts of Glogau, Stettin, APPENDIX II. 463 and Ciistrin in the hands of the French until payment, under engagement to provision tlic troops and to allow military roads between the places thus occn[)ie(l, np to their evacuation. The treaty with Russia contains little worthy of mention and not already contained in the treaty with Prussia, unless that Napoleon agreed that the dukes of Saxe-Coburg, Oldenburg, and Mecklenburg Schwerin should be restored to their estates, with the pi’ovision that, as long as the war with England should last, the ports of the two latter districts should be occupied by French garrisons. Also the small lordship of Jever in East Friesland, which came down to the Czar from his grandmother, Catharine II., was ceded to the King of AVestphalia. Secret articles annexed to these treaties contain the stipulations that the Seven Islands (Ionian) shall belong to Napoleon; that if Hanover shall form a part of the kingdom of Westphalia, a territory on the west bank of the Elbe, containing from three to four hundred thousand inhabitants, shall be restored to Prussia; and that Prussia should make common cause with France, in case England, by December 1, 1807, should not have consented to a peace conformable to the true principles of maritime law. (De Garden, X., 234, not in Martens.) A treaty of alliance between France and Russia, made on the same day with the treaty of peace, contains some noteworthy provisions; (1.) Russia was to make common cause with France, if, by November 1, 1807, England should not have made peace on the basis of an equal and perfect independ- ence of all flags upon the sea, and upon that of restoring to France and her allies conquests made since 1805. (2.) If England, by the first of Decem- ber, should not have given a satisfactory answer upon these points, France and Russia should summon the courts of Copenhagen, Stockholm, and Lisbon, to (dose their ports to the English, and to declare war against that nation. But if England should come to the terms of the allies, Hanover should be restored in lieu of colonies conquered from France, Holland, and Spain. It was the knowledge of this article whicdi led England in Septem- ber of the same year to bombard Cojienhagen and take the Danish fleet. (3.) In a certain event, the two parties should agree to remove all the ))rovinces of the Ottoman Empire in Europe, except Roumelia and the city of Constantinople, from under the Turkish yoke. (De Garden, x., 234-237, not in Martens.) Secret and somewhat chimerical articles between the two Emperors, in addition to these, are spoken of, which rest on doubtful evidence. Russia was to take possession of Turkey in Europe, and to aid Franco by its fleet to take Gibraltar; the Bourbons in Spain, and the house of Braganza in Portugal should give place to a prince of Napoleon’s blood; the Pope should lose his temporal power, and his kingdom be united to the kingdom of Italv; the towns of Africa, as Tunis ami Algiers, should be occupied by the French, and given, at a general peace, as a compens.ation to Sardinia; 464 APPENDIX II. France should occupy Malta and Egypt; all flags but those of France, Spain, Italy, and liussia, should be excluded from the Mediterranean Even an attack on the British power in India was talked of. 1807, October 27. Secret treaiies of Fontainebleau, between France and Spain. Portugal was to be divided into three parts specially defined : one was to be given to the King of Etruria, in lieu of Tuscany transferred to Napoleon as King of Italy, one to be bestowed on the vile Godoy, Prince of Peace, and one unappropriated. The second convention fixes the number of Spanish and other troops to be employed, etc. (Martens, ■* llec.,” viii., 701.) Portugal was accordingly occupied by Marshal Junot in the same autumn, and French troops, moving down into the north of Spain also, treat it somewhat as a conquered country. Another secret treaty is said to have contemplated ceding the jirovinces north of the Ebro to France, and taking Portugal in exchange. The royal family of Spain is alarmed, and there is talk of fleeing to America. Tumults break out, Godoy is put down, and, after a series of intrigues, the king and his son, who were in deadly quarrel, meet Napoleon in Bayonne: the father is induced to abdicate the crown, and ihe son, with the two other infants, signs an act of renunciation. A junta at IMadrid is induced to ask that Joseph Bonaparte may be the king. He is appointed, and jMurat takes liis place as King of Na[)les. The spirit of the Spanish people is roused against the F'rench. A long war ensues, in which Portugal is wrested from the French, and Spain finally recovered, tlirough the skill of AVellington, the resources of England, and the obstinacy of the Spanish character. To maintain a great army in the peninsula, and be equal at the same time to his enemies on the east, was too much for Napoleon, and this, with the expedition into Russia, eaused his overthrow. 1809, September 17. Peace of Sweden with Russia, made at Friedrichs- hamm, in which Finland and AVest Bothnia, with Aland and other i^lands, are ceded to the latter power. In 1810 Sweden made a peace with Napo- leon, in which Swedish Pomerania and the isle of Riigen are restored to her, and she at^rees to adopt the continental system. (Martens, “ Nouv. Rec.,” i., 19.) " 1809, October 14. Treaty of A^ienna, between Austria and France, signed at Schbnbrunn, by Napoleon, October 15, and hence sometimes called the Peace of Schonbrunn. (Martens, “ Nouv. Rec.,” i., 210.) The disasters of Prussia in the last war with Napoleon had roused the spirit of the people, led to a better military system, brought men more upright into power, and given rise to a set of patriotic clubs (Tugendbiinde). The same revival of a German feeling spread on every side, into Austria and the lands of the Rhenish league. The aristocratic statesmen of Germany, stung by the haughtiness of Napoleon, encouraged by the war in Spain, and thinking that the people might be induced to rise against the oppressor, brought on by their intrigues the fourth war of Austria with revolutionary France, APPENDIX II. 465 while as yet the German people was nnprepared for it. In this war, Prussia was forced to remain neutral, and Austria had no aid; for the expedition, sent from England to Walcheren, was too late and too unsuccessful to be of any use. In a short campaign the Austrians, although little iid'erior to the French at Aspern and AVagram, became disheartened, and the armis- tice of Znaym prepared the way for the Peace of Vienna or Schbnbrunn, which Napoleon’s situation would have made it desirable for him to accept, had the terms been less hard for the other party. In this peace — which was declared to be common to the Confederation of the llliine and the other vassals of Napoleon — (1.) Austria placed at the disposition of Napoleon, for the benefit of the Confederation of the Rhine, Salzburg, Berchtesgaden, and part of Upper Austria, consisting of the Inn-Viertel and the Hausruck- Viertel. This territory was bestowed upon Bavaria. (2.) To Napoleon, as king of Italy, were ceded the county of Gbrz (Gorizia) and principality of Falkenbnrg (Montefalcone), forming Austrian Friuli, the city and gov- ernment of Trieste, Carniola, the Villach cii’cle in Carinthia, and the coun- try on the right of the Save, from where it leaves Carniola to the frontier of Bosnia, or half of Croatia, tlie Hungarian littoral, Fiume, Austrian Istria, etc. These became the Illyrian provinces with a separate French govern- ment. By this cession Austria was cut off from the sea, but was allorved, except for English commerce and prodiuds, to use the port of Fiume. (3.) To the king of Saxony were ceded some Bohemian villages enclosed in Saxony, and to the same king, as Duke of Warsaw, AVestern or New Galicia, a district around Cracow, and a circle in East Galicia. AA’ieliczka and the salt mines were to be common to Austria and the Polish duchy. (4.) To Russia was ceded a territory in the most easterly part of Old Galicia, which should contain 400,000 inhabitants, and not include the town of Brody. (5.) The Teutonic Order having been suppressed within the Confederation of the Rhine, the Emperor of Austria renounces on the part of the Arch- duke Anton)’, who was the Grand Master, this dignity conferred by the Peace of Presburg, r.nd consents to the disposition of the property beyond the limits of Austria which had been made. The employees of the order had pensions promised to them. — In separate and secret articles (De Garden, xii., 13G), the Emperor of Austria submits to a military contribution of eighty-five millions of francs, and agrees to reduce his army to the number of 1.50,000 of all kinds of troops, so long as the maritime war of France with England should continue. By this Peace Austria lost over 43,000 square miles of territory, with 4,500,000 inhabitants. The Tyrolese, who were making a heroic resistance against France and Bavaria, were given up to their fate. 1812, May 20. Peace of Bucharest, between Russia and Turkey. The boundary was to follow the Pruth, from the point where it came out of Moldavia, to the Danube, and the Danube to the sea. In this way Bessa- rabia, with the towns of Ismail and Kilia, and a portion of Moldavia, with .30 466 APPENDIX II. the fortresses of Choczim and Bender, became Russian. Other conquests were restored. Servia, whicli had revolted, was to receive an amnesty, and to remain Turkish, hut wiili the interior adininistralion in the hands of the inliahitants. (iMartens, “ Nonv. Kee.,” iii., 307.) Tlie navigation of the Danuhe was to be free to both nations, and the Straits of Constantinoi)le to be open to Russian vessels of commerce, as well as to those of other powers friendly to the Porte, that had not yet obtained that privilege. TKi:.\TIES OF 1814 AND 1815, CONTAINING THE GKEAT SYSTEM OF FACIFICATIO.N AND READJUSTMENT WHICH FOLLOWED THE DOWN- FALL OF NAPOLEON. The Peace of Sciibnbrunn humbled the last enemy capable of offering serious resistance upon the land to the decrees of Napoleon; and the con- sent of the Emperor of Austria soon afterward to give his daughter in mai-- riage to the French Emperor at once showed his weakness and seemed to bind him to the policy of the conqueror. Even before this fourth war with Austria, Napoleon had commenced the policy of uniting parts of Europe to his Empire, instead of controlling them, as he had done at first, by his vas- sals. A decree dated IMay 17, 1809, from his camp at Vienna, incorporated the Papal states into his dominions. Other portions of Italy were subjected to the same process. The Swiss district of Valais was absorbed in the autumn of 1810. In March of the same year (Martens, “Nouv. Rec.,” i., 327) he forced his brother Louis to cede to France all of the kingdom of Holland lying to the left of the Waal, or Diilch Brabant, Zeeland, and park of Guelders. Soon after the abdication and llight of Louis (July 9, 1810), the whole of Holland was made French territory. (Martens, u. s., 338.) A decree of the Senate of France subjected to the same fate all the north coast of Gei'inany, as far as to the sea near Llibeck, comprising Oldenburg, the Hanse towns, W'erden, parts of Hanover and Westphalia, Lauenhurg, etc. (Martens, u. s., 346.) Against this high-handed proceeding in re- gard to the Duke of Oldenburg, the Emperor .41exan(lcr, his near connec- tion, protested, who had already taken offense at the enlargement of the grand duchy of Warsaw, effected at the Peace of Schbnbrunn. He now instituted a commercial policy hostile to the views of Napoleon, and in 1811 preparations were made on both sides for war. The only powers from which Russia could hope for concert of action were England and Sweden. Between England and Russia there was no difficulty in arrano-ino- an alii- ance. But Sweden was slow in incurring the resentment of Napoleon. At length, after Swedish Pomerania had been occupied by the French, Sweden made an alliance with the Czar (March 12, 1812), agreeing, in the event of war, to put 30,000 men into Northern Germany, and receiving the ])romise of Alexander that he would aid her in the acquisition of Norway. England and Sweden came together in the Peace of Oerebro on the 13th of July, APPENDIX II. 467 1S12 (Martens, u. s., 431), and on the 13th of March, 1813, England made an engagement, similar to that of Russia respecting Norway, jironiising also a subsidy of a million sterling to Sweden, and ceding to her the island of Guailaloupe, taken from the French. (Martens, u. s., 558.) It was of great importance in the subsequent war that Sweden allowed the Russian aiTOy, Avhich was in Finland, and was to aid in the contjuest of Norway, to be employed in Poland, and that the Peace of Bucharest left another army free to act against the French invader. Napoleon, on his side, made new treaties of alliance with Prussia and Austria. (February 24, March 14, 1812, Martens, u. s., 417-431.) In the open and secret articles of the Prussian Treaty, it is agreed that Prussia shall make common cause with France, without being obliged to furnish troops for wars in Italy, Turkey, or beyond the Pyrenees; that the number of such troops in the field, in the event of war with Russia, shall be 20,000, besides a large garrison force; that these shall be kept in one body as much as possible, and be used in preference for the defense of the Prussian prov- inces, but shall be, for all new movements, under French control; that any part of Prussia included within the lines of operations shall bo open to the French and their allies, except Upper Silesia and the city of Potsdam; and that provisions and munitions of war shall be furnished to the French troops, to be charged to the contributions yet due from Prussia according to the Peace of Tilsit. A promise is held out of an indemnity, in the shape of new territory, for the expenses of Prussia in the war, should it come to a happy issue. The fortresses of Glogau, Custrin, and Stettin were still held by French garrisons, and the leading patriots had to quit the king's presence and service. Austria stipulateil to furnish, as her contingent, 30,00(7 troops and GO pieces of cannon, in four divisions, under an Austrian commander, subject to the immediate orders of their own sovereign. The integrity of Turkey is guaranteed.^ In case of the reconstruction of the kingdom of Poland, Austria is to hold Galicia, or, if that should be united to the Polish monarchy, the Illyrian provinces in exchange, besides being compensated for the costs of the war by the acquisition of new territory. Secured thus in his rear, and strengthened by the forces of his allies, Napoleon crossed the Nicmen, June 24, 1812, too late in the season for success, and returned the same autumn a fugitive, his vast army nearly de- stroyed by war, famine, and cold. The wrath of the German people, espe- cially of humiliated Prussia, now began to burst forth against the tyrant. The first impulse was given by General York, commander of the Prussian contingent, who, on the 30th of December, 1812, without the privity of his sovereign, in a capitnlation with the Russiin General Diebitsch. agreed to keep liis army ncntral in a district of East Pru''sia, and if the king should not sanction the agreement, at lea=t to observe the neutrality for two months. (Martens, u. s., 556.) The king was alarmed, but dragged for- ward by the boiling spirit of the people. A treaty made not long after this 468 APPENDIX II. between Russia and Prussia, wliieh has not seen the light, provided it is said, that Prussia should recover the territory which she held before 1806, e.xccpt Hanover, and should furnish 80,000 men for the war, against 150,000 to be furnished by Russia. Help was to be sought in the shape of an alli- ance with Austria, and of subsidies for Prussia from England. On the I9ih of March, 1813 (Martens, u. s., 564), a convention was made between Russia and Prussia, in which a proclamation was agreed upon, inviting the princes and people of Germany to unite for the liberation of their country. Every German prince who should not respond to this appeal within a givcm time, should be menacepross the slave-trade, comp. § 218. (Martens, “Uouv. Ecc. Gen.,” continuing Martens, “Xouv. Rec.,” iii., 45G.) 1844, November 28. Treaty between the Dukes of Tuscany, Lucca, and jModena, in view of the death of the Empress Maria Louisa, Duchess of Parma. This event took place December 18, 1847, when the Duke of Lucea would become Duke of Parma, Piacenza, and Guastalla, and Lucca woidd become Tuscan. (Sec Congress of A’'ienna, No. 12.) The Duke of Lucca (future Duke of Parma) agreed to cede to Modena, Guastalla and the Parmesan territory on the right bank of the Enza. Modena renounces to Tuscany the Vicariats of Barga and Pietra Santa (Act of Congress of Vienna, Art. CII.) — which were to become Modenese when Lucca should become Tuscan — and to Parma the districts of Bazzano and Scurano on the left bank of the Enza. Tuscany cedes to Parma its possessions in the Lunigiana, Pontremole, Bagnone, and their dependencies. These arrange- ments rounded off the duchies, and did away with enclaves. Austria and Sardinia — whose rights of reversion were affected, that of Austria to Parma and Guastalla, that of Sardinia to Piacenza, both derived from the Treaty of Aix-la-Chapelle — concurred, and modified their rights in such sort that the reversion of Austria was made to apply to the new Parmesan teiritoiy in the Lunigiana, and was passed over to Sardinia by way of in- 480 APPENDIX II. (leninity for the loss of the town of Piacenza, which, by a special article of May 20, 1815, concluded at Vienna, was to become Austrian whenever the Duchy of the same name should revert to Sardinia. (Martens, “N. B,. G.,’' XV., 1-42.) — In the spring of 1860 these duchies, with Romagna, by a rev- olutionary action and the consent of the people, were annexed to the King- dom of Sardinia. 1848, February 2. Treaty of Guadalupe-Hidalgo, by which Texas, New Me.xico, and Upper California was ceded to the United States, which agreed to surrender all other conquests, to pay Mexico fifteen millions of dollars, and to assume all claims of its citizens against Mexico, decided or undecided, arising before the signature of the treaty. (Murhard, xiv., 7.) Article XXII. of this treaty illustrates § 160. 1848. Difficulties in Schleswig-Holstein, Denmark, and Germany, the subject of a number of treaties. See under 1864. 1856, March 30. Treaty of Paris after the Crimean War, between Aus- tria, France, Great Britain, Russia, Sardinia, and the Ottoman Porte, Prus- sia also being invited to participate. (Martens, “ N. R. G.,” xv., 770.) By this treaty (1.) The Black Sea is neutralized and opened to the commerce of all nations, but interdicted to flags of war, excepting that a certain force can be kept on foot for revenue purposes by Turkey and Russia, who pledge themselves to maintain no naval arsenals on its coasts, § 61. In ac- cordance with this, the old Turkish principle is to be maintained of ad- mitting no vessels of war into the Dardanelles and the Bosphorus, the only exceptions being those of light vessels in the service of the legations of friendly powers, and of the powers who have a right under the treaty to station certain vessels at the mouths of the Danube. (Articles XI.- XIV. ) (2.) The Danube is thrown open to commerce, § 62. (Articles XV. -XIX.) (3.) The limits of Bessarabia are somewhat altered, with the intention of taking away from Russia the command of the mouths of the Danube, and the tract thus ceded by Russia is added to Moldavia. (Articles XX. -XXVI.) The places taken in the war from Russia are restored. (Article IV.) (4.) Moldavia and Wallachia, as states under the suzerainty of Turkey, are confirmed in their privileges by the Sublime Porte, and guaranteed in them by the contracting powers; but no exclusive j^rotection over them can be exercised by any of the guaranteeing states, nor any separate right admitted of interfering in their internal affairs. They are to have an independent national administration, liberty of wor- shij), legislation, and commerce, an armed national force, and a revision of their laws, made under a joint commission of all the contracting parties. A new organization of these principalities shall be arranged by a conven- tion at Paris of the treaty-making pov/ers, and a hatti tclieriff, conformed to the decisions of that convention, shall be the instrument under which their organization is to j)rocced. They are allov/cd, in concert with the Porte, to adopt measures against foreign aggression. If internal disorders APPENDIX II. 481 should break out in them, the Porte shall have an understanding with the other parties to the treaty concerning measures to be taken for the pur- pose of maintaining or establishing legal order, but no armed intervention can take place without the previous accord of the aforesaid powers. (Ar- ticles XXI.-XXVII.) For the convention, organizing the principalities, which was signed at Paris, August 19, 1858, see Martens, N. R. G.,” xvi., 2, 50. (5.) Servia, with its privileges, is placed under the same guaranty. The Sultan’s right of having garrisons there is to remain as it had been. (6.) The Sultan is invited to participate in the European advantages of public law and concerted action, and is secured in the independence and integrity of his Empire. The firman of February 18, 185G, placing all Christian sects in Turkey on .a level with Mohammedans, in respect to life, property, religion, etc., is acknowledged by the other powers, who, how- ever, disclaim all right to interfere between the Sultan and his subjects, or in the internal administration of his kingdom. (Articles VII.-IX.) The six Christian powers engage to respect each for his part, the independence and territorial integrity of the Ottoman Empire; they guarantee in common the strict observation of this engagement, and will consider every act of a nature such as to oppose it as a question of general interest. (Article VII.) They also engage to endeavor to prevent quarrels between the Porte and one or more of the signatory powers. (Article VIII.) A spe- cial treaty concerning the Straits was made between Russia and Turkey. By a declaration of April IG, certain important rules of maritime law are adopted by the parties to this peace. See §§ 128, 190. (Martens, u. s., XV., 791). — Three powers, Austria, France, and Great Britain, unite in a special guaranty of the independence and integrity of the Ottoman Em- pire. All infractions of the treaty in that direction will ho considered as casus helli. (Ibid., 790.) Before 1876, when war broke out again between Russia and Turkey, several new arrangements occurred under the stipulations of the treaty of Paris. We give a brief statement of those referring to the Danubian prin- cipalities and the Black Sea. (1.) A new organization of the principalities was effected at Paris, August 19, 1858, the seven powers concurring (“ X. R. G.,” xvi., 2, 50). They are to remain autonomous under Turkey as suzerain, with the privileges confirmed by different instruments, especially by the hatti scherif of 1834, and guaranteed by the six powers. The gov- ernment is to be in (he hands of hospodars elected for life by the assem- bly, none being elected except persons thirty-five years old, sons of parents born in one of the principalities. The assembly is elected for seven years under the presidence of the metropolitan, who, with the bishops of dio- ceses, belong c.x officio to the body. The qualifications of electors and representatives are determined by the signatory powers. A Central Com- mission of sixteen, taken eight from each principality, four chosen by each hospodar, and four by each assembly* are to have the office of watching 31 482 APPENDIX II. over the instrument of government, and of revising, codifying, and prepar- ing laws of common intciest to both princij)alilies. The principalities bad wished to form a closer union, and elect a foreign prince, both of which were prohibited by the organic law made for them at Paris in 1858. i In 1859 the assemblies of the two princi|)alities elected Prince Conza; a protocol of September G, 1859, gave validity to this double nomination, and by a firman of December 4, 18G1, the Porte in con- cert with the guaranteeing powers allowed this infraction of the basis of government made in 1858, until Couza’s 'government should end. Couza’s government fell by revolution, and a provisory government was established in the spring of 18GG; Prince Charles of Hohenzollern being put for- ward as his successor. The seven powers met by their ambassadors, at Paris, in 18GG, and the upshot was to accept the state of things forced on them by the revolutionists in the principalities. The consent of Turkey was expressed in a firman, dated October 23, 18GG, making Prince Charles Prince of the United Piincipalities. He is made Prince by hereditary title, which is to pass in direct line, or if that shall run out, the rank will be conferred on the eldest of his descendants by an Imperial firman. He engages to respect the Sultan’s rights, to confer no order or decoration, to increase the tribute already paid, keep up an army not to exceed 30,000 troops, not to allow the territory to become a rallying point for disturbers of the peace, to observe treaties and conventions between the Sultan ami the other jiowcrs so long as they violate no rights of the United Princi- palities, and to conclude no treaty directly with foreign jiowers. (2.) Modifications of the rule neutralizing the Black Sea, agreed to at London, March 13, 1871, by the powers participating in the Treaty of 185G. In October, 1870 — soon after the fall of the second Empire — the Russian government declared to the other signatory powers, that the Em- peror could no longer hold himself to be bound by the restrictions of 1856, on his rights of sovereignty in the Black Sea, nor by the special convention then made with Turkey, which determined the number and size of the vessels whieh these two riparian powers allowed each other to maintain in these waters. The reasons brought forward for this step were so frivolous, that one wonders at the want of shame with which they were publicly avowed. They were, (1.) A trifling inconsistency between the main Treaty of 185G and (he Convention of the Straits attached to it. (2.) That the treaty had been violated by the great powers in its letter and spirit, by their acquieseence in the revolutionary unio'n of the Danubian princi- palities. (3.) That the Straits had been opened' to foreign vessels of war against the terms of the treaty. (4.) That naval warfare had been altered by the use of iron-clads, which exposed the Russian ports in the sea to sudden attacks of enem.ies forcing their way through the Straits. It must be admitted that the stipu'ations of 1856 were galling and humiliating to 1 See for example Articles vi., vii., N. R. G., xvi. 2, 50 et seg. APPENDIX II. 483 Russia; probably, also, the opinion of Europe went with the Emperor in his (leelaralions. A Conference, held at London in Janiiarv, 1871, to consider this decla- ration resulted in annulling Articles XL, XIII., XIV., of the Treaty of Paris, together with the convention concerning the Straits between Turkey and Russia.^ The following Article was put in their place: “ The prin- ciple of the closure of the Straits of the Dardanelles and of the Bos])horus established by the special convention of March 30, 1856, is maintained, with the right, on the part of hlis Imperial Majesty the Sultan, of opening said Straits in time of peace to ships of war of friendly and allied powers, in case the Sublime Porte should find it necessary in order to secure the Treaty of Paris of March 30, 1856.” A convention between Russia and Turkey abrogating the Convention of the Straits of the same date, ac- companies this treaty. lluis Russia has recovered the national right of maintaining her fleets of whatever size in the Black Sea, and Turkev can lawfully open in peace the Straits to her friends who are enemies of Russia, in order to observe the treaty and protect herself against Russia. 1858. The treaties of this year, opening China to several of the Christian powers, are remai'kable, as bringing that country in a degree within the sphere of the law of nations. In the French treaty of June 27, it is said that the diplomatic agents shall enjoy, where they reside, the privileges and immunities granted to them by the law of nations ; that is to say, their j)er- sons, famil}', house, and correspondence shall be inviolable, etc. Consuls or consular agents may be appointed for certain sea and river ports. The right of building houses, churches, schools, etc., in the open ports is ad- mitted. Frenchmen may resort to places in the interior and jiorts not open to foreign commerce, when armed with passports given by French dii)lo- matic agents and consuls. IMembers of all Christian communions shall have freedom of person and worship, and missionaries passing into the interior, provided with passports as above, shall be protected. Xo obstacle shall be put in the way of any Chinese embracing Christianity. (Ibid., xvii., i., 2.)^ 1859, July 11. Preliminaries of peace concluded at Villafranca between Austria, France, and Sardinia, followed by a definitive peace signed at Zu- rich, Xovember 10 of the same year. (Ibid., xvi., 2, 516). The treaties are three in number, two between Austria and each of the other parties, and one in which all three are concerned. Austria cedes to France, and 1 At the end of the first meeting of the representatives, it was voted (in refer- ence, of coiir.se, to the course taken by the Czar) that no power can release itself from tlie engagements of a treaty, nor modifv its sti|inlations, except after the assent of the otlier contracting parties through an amicable understanding. The protocol may be found in the Nonv. Rrc. Gen., xviii., p. 278. 2 Quite recently we learn tliat a Chinese translation of Dr. Wheaton’s A'fe- ments is in preparation. (1864.) 484 APPENDIX II. France transfers to Sardinia, nearly all of Lombardy. The boundary line of the ceded territory runs from the southern limit of Tyrol on the Lago di Garda, through the middle of that lake, to the vicinity of the fortress of Peschiera, until it strikes the circumference of a zone made by a radius of 3,500 meters plus the distance from the centre of the fort to the outer- most part of the glacis; thence along that circumference to where it strikes the Mincio; thence along the main channel of the Mincio to Le Grazie, and thence in a direct line to the Po; thence along the main channel of the Po to Luzzara, where the former boundary line of Austrian and Sardinian territory comes to the river. It is also agreed that Austria shall receive from France a payment of forty millions of florins, being a portion of the national loan of 1854, in return for which Sardinia shall pay France one liTindred million francs, in five per cent, stock, besides sixty millions to- ward the cost of the war. The new government shall assume three fifths of the debt of the Lombardo- Venetian Monte, or bank for loans. In the treaty between France and Austria the two parties promise to favor an Italian Confederation under the Pope, of which, when established, the Venetian remnant of the Austrian dominions in Italy shall be a member, although still remaining subject to the Austrian crown. In the same treaty it is said that the rights of the dukes of Tuscany, Modena, and Parma, to their dominions, arc reserved as being outside of the authority of the con- tracting parties, and not capable of being changed except with the concur- rence of the powers which made the Treaty of Vienna of 1815. As a sequel to this cession of Lombardy, by a treaty signed at Turin, March 24, 1860, Sardinia cedes Savoy and the arrondissement of Nice to France, the parts of Savoy near Switzerland being transferred subject to the condition of neutrality imposed on them in 1815. § 163. (Martens, “ Nouv. Rec. Gen.,” xvi., 2,539.) — By these two last treaties and the subsequent events in Italy, the arrangements of the Congress of Vienna are effectually set aside, as it regards one important part of Europe, and the control then given to Austria over Italian affairs is lost. Other acquisitions made by the kingdom of Sardinia came principally by revolution, armed intervention, and popular vote. Tuscany, Parma, Modena, and the Roman legations were annexed after a popular vote by a decree of March, 1860. Garibaldi’s revolution in the Two Sicilies was followed by the occupation of Umbria and the Marches, and by a popular vote in the same year. Gaeta surrendered in February, 1861, and in the same year the kingdom of Italy took its name. Finally, the Ecclesiastical State was absorbed in the kingdom during the summer of 1870, armed occupation and popular vote here also going together. 1863, July 13. Treaty relating to the Throne of Greece, between Den- mark on the one part, France, Great Britain, and Russia on the other, as the three protecting and guaranteeing powers under a convention of May 7, 1832. Otho, the King of Greece, of the Bavarian family, had been ex- APPENDIX II. 485 pelled in a revolution in tlie autumn of 1862. After some negotiations^ the crown was offered to a prince of Denmark by the Assembly of Greece, under advice of the great powers. Great Britain meanwhile proposed to abandon the protectorate of the Ionian Islands, in view of their union with Greece, if the powers which were parties to the treaty of November 5, 1815, would give their consent, and if Greece should remain a monarchy. The King of Denmark came into the treaty on behalf of a member of his family. Its principal articles were, (1.) That the King of Denmark, on behalf of Prince George, son of Prince Christian, accepts for him the hereditary sovereignty of Greece, offered by the Assembly in the name of the nation. He is to lake the title of George I., and Greece is to form an independent constitutional monarchy. (2.) The Ionian Islands shall be- come a part of Greece whenever the Ionian Parliament, with the courts of Fr.nnce, Austria, Russia, and Prussia, shall consent. (3.) The crowns of Denmark and Greece shall never be united on the same person. (4.) The lawful successors of George I., shall profess the faith of the Orthodox Oriental Church. (5.) The Government of the Ionian Islands shall be ad- vised by Great Britain to add ten thousand pounds sterling to the civil list of the Greek King, and the three great powers above named shall each annually give up four thousand pounds sterling of the interest on the debt due from the Greek Government, to be used as a personal donation to the King, besides the civil list established by the law of the State. (Martens, “ Nouv. Rec. Ge'n.,” xvii., 2, 79, “Annuaire des Deux Mondes ” for 1862, 1863, or xii., 999.) 1864, March 29. Treaty relative to the union of the Ionian Islands with Greece, between the three protecting powers (as above) and Greece, car- rying out in substance an arrangement of November 14, 1863, to which these three powers, with Austria, were parties. (1.) The seven Ionian Islands — their consent being given through their Parliament, and Great Britain’s abandonment of her protectorate having been accepted — are to form a part of the Greek monarchy. (2.) The Islands of Corfu and Paxo, with their dependencies, shall enjoy perpetual neutrality. By the treaty of November 14, 1863, this neutrality extended over all the Ionian Islands and their waters, but was now made more limited at the request of the Greek government. (3.) Existing commercial arrangements are to re- main in force, subject to modifications to be made within fifteen years. (4.) The Established Greek Church of the islands, the special protection enjoyed by the Roman Catholic Church, liberty of worship, civil equality, are to remain in force, according to the present Constitution of the islands. (5.) The additions to the civil list of the King of Greece, advised in the treaty of July 13, 1863, are agreed to by the Legislative Assembly of the Islands and by the three powers. (See that treaty, under No. 5.) (6.) By tlie treaty of November 14, 1863, the fortresses of Corfu and its depend- encies were to be demolished before the withdrawal of the British troops 486 APPENDIX IL wliich guarded them. Nothing is said of that matter in this treaty. The (ji-eeks desired to retain tliem, but they were dismantled as far as possible.’ (?.) The three courts guarantee the condition of the islands as portions of an independent constitutional monarchy. (“ Annuaire,” u. s. 1000- 1004). 18G4. Difficulties regarding Schleswig-Holstein, from 1848 to the Peace of Vienna, October 30, 18G4. To understand the better this confused series of events, we may premise, (1) that Schleswig, a Danish, but, except in the north, German-speaking duchy, and Holstein, a duchy pertaining to the Germanic body under the King of Denmark (who had been also, since 1815, as Duke of Lauenburg, a member of the Confederation), had formerly joint Estates, which, however, for one hundred and twenty years had not been called together. In 1831 the King of Denmark granted them estates in the shape of two houses, one for each duchy, with no power of final action. (2.) In 184G, Christian VIH. of Denmark, whose son Frederic VII., king from 1848, was childless, issued a patent declaring the “royal law” of suc- cession in force for Schleswig, Lauenburg, and part of Holstein; and ex- pressing the intent to Indng the rest of Holstein into closer union with the rest of the kingdom. This Royal Law of Frederic HI., made in 1GG5, gave to descendants of females the right of succession on the extinction of the male line. (3.) If the King of Denmark encroached on the rights of a Germanic duchy, the act could be brought before the Diet, and a military execution be ordered, if judged best. One or more Germanic states, acting through a civil commissioner, and a military force of definite size, could be charged with this execution, the time for the continuance of which was to be limited. (4.) The Duchies of Schleswig and Holstein claimed against Denmark the right of having a voice in a new constitution binding upon them, the right of a united government, the right of not being consolidated with the Kingdom of Denmark, and that of following their old laws of suc- cession in the, male line only. (5.) Denmark was struggling for closer union of the component part.s of the state, or rather consolidation of the different territories under the king. The duchies were German, for the most part, in feeling. At the same time the craving for unity in Germany was becom- ing very strong, and took a democratic direction. (G.) We just hint at the events in Germany — at the revolutionary year of 1848, with the “ Vbr- parlemcnt,” the “ Reichsparlemcnt,” the vain attempt to establish an Em- pire under the King of Prussia, the reaction and substantial return to the Federal Constitution of 1815. (1848-1851.) We see a continual desire, especially in North Germany, for greater political unity, a jealousy between Prussia and Austria, a desire, for example, on the part of the latter to bring her non-Germanic States into the Confederation, with the ultimate prob- ability of a conflict between the two great powers in regard to the hegemony among the Germans. There is manifest, also, a want of loy alty tow'ards the constitution on the part especially of Prussia, and a disposition to alter or destroy it. APPENDIX 11. 487 In 1848, Frederic VIL, of Denmark, on succeeding to the crown, an- nounced a constitution, under which the kingdom and the duchies were to have common estates. (“ Nouv. Rec. Gen.,” xi., 492.) The dejmties of the estates of the duchies upon this petitioned the king to convoke the two estates, for the purpose of deliberating togctlier, to submit to these estates the project of a constitution for Schleswig-Holstein, and to obtain admis- sion for Schleswig into the German Confederation. The king’s answer not being satisfactory, the duchies revolted, and set up a provisional govern- ment (Ibid., 496) ; the German Diet decided to protect the right of union between the duchies; the King of Prussia was deputed to mediate, and se- cure from Denmark the withdrawal of its troops from Schleswig; and it was decided in the “ Vorparlement ” that the affairs of Schleswig were within the competence of Germany. August 26, 1848. Convention of IMalmo. Federal troops were raised, and, penetrating into the duchies, drove out the Danes; but as interference from abroad was threatened, the Prussians withdrew their forces, and, with the authority of the central power, made this armistice. It provided that all laws applied to the duchies since March, 1848, should be held null and void ; that a new government emanating from the parties to the truce — r Denmark and Prussia — should replace the provisory government; and that the troops of Schleswdg siiould be separated from those of Holstein. Lauen- burg likewise, during the armistice, should be governed by commissioners, like the other duchies. The armistice was to last seven months. (Ibid., 546 et seq.) The Estates of the duchies refused to accept this armistice. (Ibid., 561.) The principles of Prussia in regard to the duchies were, about this time (Ibid., 498), that they were inde[)endent states, and states closely united together, and that the male line reigned in them. The fundamental law of the duchies, as projected under the provisory government, may be found pp. 531-546, of the same volume. They form “ a united, inseparable, and indivisible state; every change in the limits of territory implies a change of the constitution ; ” and “ they form a part of the Confederation of the Ge rman states.” July 10, 1849. Armistice of Berlin for six months, between Prussia and Denmark, in which neither the duchies nor the Confederation joined. The convention of Mahno was very distasteful at Frankfort. On its expiration German troops were sent into the duchies with a stadtholder, but the army of the revolted duchies suffered a severe defeat from the Danes at Fred- ericia, in Jutland. By the armistice the Prussian army was to evacuate Jutland; a commission of three, one a Dane, one a Prussian, and one an English umpire, were to manage affairs in Schleswig; and no troops should be allowed in the duchies except those of the contracting parties, with a small Swedish force. (Ibid., xiv., 544.) Secret articles of the same convention provided that, in case the duchies or their army offered armed resistance to the truce, whether acting alone or 488 APPENDIX II. aided by one or the other of the German contingents, Denmark would be free to use all means of force at its command, in which case Prussia prom- ised to withdraw its troops, and any officers who were serving in the army of the duchies. (Ibiil., 099-701.) A protocol of the same date, made with the concurrence of the British Minister at Berlin, gives, among the preliminary articles of a peace, these: that Schleswig shall have a separate Constitution, for law and internal ad- ministration, from Holstein, its politic.al union with Denmark being left in- tact; and that Holstein shall have a representative Constitution as soon as possible. The parties agree to demand the guaranty of the great powers for the strict execution of a definitive peace in regard to the ducfiy of Schleswig. The question of succession in Denmark is to be regulated in concert with the same powers. (Ibid., 542, 543.) July 2, 1850. Treaty of Peace made at Berlin between the King of Prussia, for himself and for the Confederation, and the King of Denmark; the British Minister concurring in this treaty also. (Ibid., xv., 340.) By this act no great progress was made towards a final adjustment of the ques- tion of the duchies. The King of Denmark might claim the intervention of the German Confederation for the support of his legitimate authority in Holstein; and, if intervention were withheld, might be free to use armed force. Commissioners were to be appointed to fix the boundaries of the teri itory of the Danish Kingdom and that included in the Confederation. The parties to the treaty reserved the rights they had before the war. This was accepted by the states of the Confederation, and ended the war betweejt it and Denmark, but not that between Denmark and the duchies. The King of Prussia, under the same date, agreed to withdraw all Prussian troops stationed in the three duchies, and to put no obstacles in the way of military measures which, after the evacuation, should be taken in the duchy of Schleswig by Denmark. (Ibid., 343.) By a convention at Olmutz, November 29, 1850, Austria and Prussia agreed to send commissioners into Holstein requiring suspension of arms, and making threat of a military execution in case of refusal. An army of 25,000 men, of each of these nations, was to be sent in case of refusal. (Comp. Ibid., 348.) But the rights of Holstein and its relations with Schleswig were to be on the basis of the status quo ante bellum. The duchies obeyed. Negotiations in 1851 and 1852, in which Austtia and Prussia acted for the Confederation, brought Denmark and the Confederation to an under- standing in reo-ard to the relations of the kingdom to the duchies. To use nearly the words of the editor of the “ Nouv. Rec. Gen.,” M. Sammwer (vol. XV., pp. 322, and onward) : Denmark engaged (1) not to incorporate the duchy of Schleswig in the kingdom of Denmark, and to take no step tending thereto. (2.) The non-political relations uniting Schleswig and Holstein shall be preserved. (3.) The organization of the monarchy shall APPENDIX II. 489 ()e such that no part shall be subordinate to another. (4.) Such organiza- tion ^llllll require the concurrence of the duchies of Schleswig, Holstein, and Lauenburg, and of the Chambers of Denmark. (5.) Schleswig and Holstein shall have special ministries for justice, worshi[), instruction, in- terior administration, domains and imposts, commerce and industry. (6.) Foreign affairs, finances, the army, the council of state, shall be common to the two duchies and the kingdom. (7.) The estates of Schleswig and Hol- stein shall have a decisive voice in all those affairs which were of their re- sort according to the Constitution of 1831 ; that is, in all laws relating to imposts, rights of persons, and rights of property. Hence it is agreed that a common representative system for all the monarchy, with a decisive voice, shall not be constituted to the prejudice of the competence of the separate assemblies. (8.) Danish and German nationalities shall be equally pro- tected in Schleswig. On their part the German powers agreed to place the ten-itories occupied by their troops under the authority of Denmark, and promised to sanction a law of succession for the integrity of the Danish monarchy. (Ibid., xv., 366, and onward.) These arrangements contained new difficulties in them- selves, and were not fulfilled with entire uprightness by Denmark. 1853, May 8. Treaty of London, sanctioning a projected succession in Denmark. The king and his uncle, the only members of the direct male line, had no children. This new Pragmatic Sanction, to which Austria, France, Great Britain, Prussia, Russia, Sweden, and Norwav, with Den- mark, were parties, provided that, on the extinction of the direct line de- scended from Frederick HI., — in whose reign, and in 1665, the admissi- bility of cognates to the throne became a royal law, — Prince Christian of Schleswig-Holstcin-Sondersburg-Gliicksburg, and his issue in the male line by Louisa, born Princess of Hesse, should have a right to the throne, and to the succession in all the states actmdly united in the Danish monarchy. The contracting parties declare, however, that the existing rights and obli- gations of the King of Denmark and the German Confederation, as estab- lished by the Federal Act of 1815, and the existing federal law, are not altered by the treaty. To this treaty other sovereigns were invited to ac- cede, and did so to a great extent, but several of the powers of the Ger- manic body — Baden, Bavaria, Grand-ducal Hesse, the Mecklenbnrgs, Saxc- M’ eimar, ancore of religion and humanity, § 51. International law has the same foundation as state law, §§ 1, 2 ; its meaning in an abstract sense, § 3 ; in a more limited sense, § 4 ; actual international law, what 7 § 5 ; originated in Christian states, why 7 § 7 ; is extending beyond Christen- dom, § 5 ; not ob.served toward savages, ibid. ; rules of intercourse between two or a few states, no p.art of it, ibid.; genesis and voluntarinc.ss of, § 6; of later growth than state law, ibid. ; in Greece, Koine, and niediatval Europe, quite imperfect, § 8; took a religious form among the ancients, ibid.; positive method in, its deficiencies, § 13; not resolvable into contract, § 14; its jural, § 15 ; and moral grounds, § 16 ; rights of nations, §§ 17-21 ; duties and claims, §§ 22-25 ; divisions of international law, §§ 26, 27 ; custom and free consent, sources of, § 28 ; adopted by municipal law, § 29; aids for knowing what it is, § 30; progress of, §§ 31, 32; uncertainty and want of authority of, §§ 33, 222; historv of, its importance, § 34; method in this work, § 35; international law regards all governments as legitimate, § 38; know's only governments de fncto, § 40 ; exam])les of recognition of new states, ibid. ; forbids assistance to revolted provinces, § 42 ; but allows assistance to states ag.ainst revolt, ibid. ; how far interference is allowed by international law, § 43-51. (See Interference, Balance of Power, Monroe Doctrine, llcligioti. Congress.) Property what, and 33 514 INDEX. how acquired, according to international law? §§ 53-55. Territory, what? § 56; international law as to coasts, seas, bays, rivers, §§ 57-62; as to inter- course, §§ 63-79; as to comity and courtesy, §§ 81-85; as to agents of inter- course, §§ 86-100 (sec Ambassadors, Consuls) ; as to right of contract and treaties, §§ 101-113 (see Treaty); as to right of self-protoetion and redress, or war, and the laws and usages of war, §§ 114-142 ; as to pirates, the slave- trade, and civil wars, g§ 143-146 ; as to capture, recapture, and occupation, §§ 147-153 ; as to truce and peace, §§ 154-162 ; as to obligations and rights of neu- tral states, §§ 163-181 ; as to rights and liabilities of neutral trade, §§ 182-191 ; especially as to neutral properly in armed enemy’s vessels, § 192 ; as to contra- band, occasional contraband and preemption, and trade with the enemy opened in war, §§ 193-201; as to blockade, §§ 202-206; as to continuous voyages, § 207; to the right of search and to cohvoy, §§ 20S-214; as to search of suspected slavers and disjvutes concerning that point, § 220. Defects and nar- row limits of international law, §§ 222-223; methods of preventing or of peace- fully settling disputes, §§ 224-227. Sanctions, prospects, importance of the study of international law, §§ 229-231. Interpretation of treaties, § 113 ; repugnant and conflicting clauses, ibid. Inviolabilit}’- of ambassadors, § 91 ; except in extreme cases, ibid.; a right for- merly qualified by English jurists, § 96. Ionian Islands, App. ii., under 1807, p. 463; 1815; 1864. Japan grants exterritorial privileges to foreigners, § 69. Jews, their usages in war, § 134. John, King of France, case of, § 104. Jus (jentium, § 9; jus inter gentes, ibid. ; naturce or naturale, § 10; definition of by Ulpian, ibid. ; by Grotins, § 11 ; voluntarium, as defined by Grotius, ibid. ; tran- sitiis or passagii innoxii, § 63 ; dttractus, § 65 ; albinagii, § 67 ; legatorum or legal ionum, § 86 ; quarteriorum, § 92 ; postUminii , § 151. Kaltenborn, Carl von, cited, § 166. (Comp., for his works, App. i., p. 426, and note, u. s.) Kant, on perpetual peace, § 226. Kent, Chancellor, often cited, as in §§ 29, 60, 96, 100, 103, 114, 123, 128, 129, 144, 146, 148, 176, 191, 192, 196, 201. Kliiber, “ Europaisches Volckerrecht ” (ed. of 1851), cited, §§ 2, 90, 91, 92, 94, 98, 106, 133, 191, 196. Koszta, M., points of case of considered, 80. Language in which treaties are written, § 158, end. Lansdowne, Lord, on recognition of new states, § 41. Lauenbnrg, afftvirs of, App. ii., under 1848, 1852, 1864 (see under 1864); be- comes Prussian by Treaty of Gastein, 1865, ibid. Laurent, § 34. Lawrence, St., the, free to the United States by the Eeciprocity Treaty, § 62 ; by the Treaty of Washington, from latitude 45°, see App. ii., 1871. Lawrence, W. B., comment, on Wheaton, cited, §§ 145, 180; on the affairs of Schleswig-Holstein, App. ii., under 1866. League at Schmalkalden, App. ii., 1530. INDEX. 515 Legates a and de latere, etc., § 98, note. Legitimacy pertains to states under all political forms, § 40. Leslie, Bishop of Ross, §§ 90, 96. Lex domicilii, its effect, § 74 (sec Domicil). Liability to capture of goods and vessels at sea, § 184 et seq. Licenses to trade, § 15.5; English rules concerning, ibid. Lieber, Dr. E., § 16, note ; § 130, note ; § 142. Lieger ambassadors, the term explained, § 88, note. Limburg and Luxemburg, relations of by treaty of 1867, § 163. Livy, cited, §§ 1.34, 151, note. Lowry on the jirevention of hostile expeditions by our government, § 169. Loyal persons in a revolted province, property of, hostile, § 183. Liibeck, its treatment of a vessel fleeing into its waters, § 166. Lucchesi-Palli, on blockade, § 202. Lushington, Dr., on effective blockade, § 202. Mabcy, the Abbe de, cited in notes to §§ 21, 109, 110. Malmesbury, Earl of, on search, § 219. Manning, W. Oke, his Commentaries (ed. 1, 1839; ed. 2, 1875), §§ 124, 149, 172, 189, 191, 194, and frequently in the following sections also, §§ 21 1, 221. Marcian, the Emperor, law of, § 193. Marcy, W. L., on Koszta’s case, § 80 ; on the declaration of 1856, §§ 128, 191. Maritime laws of mediaeval Europe, Ajip. i., p. 414. M.arquardsen, Prof, at Erlangen, on the Trent case, § 199. Marque, letters of, § 127. Martens, CIi. de, comp. §§ 415, 426 it's, 427 ; his “ Causes Ce'lebres, ’ App. i., p. 415 ; his “ Guide Diplomatique,” § 98 ; his part in the “ Nouv. Recucil,” etc., p. 154. Martens, G. E. de, his “Precis du Droit dcs Gens,” often cited (in the fourth edi- tion), as in § 65, note, on emigration, §§ 91, 123 ; on forms of treaties of peace, § 158; on the language used in treaties, ibid.; on freedom of neutiul sliips, § 191 ; on occasional contraband, § 196; on penalty for breaking blockade, § 205. Ills essay on “ Armateurs,” § 127. His “ Merkwurdige Erzahlungen,” § 78, p. 116. His “ Rccueil,” very ol'ten cited in App. ii. Comp., for him and his continuators in this work, Ajip. i., p. 415. Mediation recommended at Treaty of Paris in 1856, § 224. Mendoza, Spanish ambassador in England, case of, § 96. Middle Ages, international law in, § 8 ; treatment of foreigners in, § 67 ; usages of war in, §§ 134, 135. Milan decree, § 206 (p. 322). Mississippi, the, negotiations concerning the freedom of navigating, § 62. Mohammedan nations, long shut out of Christian international law, § 7 ; alliances with, long disapproved, § 8. Mold, R. von, §§ 20 h, 73, 76. Comp. App. i., ])p. 413, 416. Mole', Ct., on notification of blockade, § 204. Mollicn on confiscating shares of public debt held by a hostile state, § 124. Monroe, President, on recognizing new revolutionary communities as states, § 180. Monroe Doctrine, what 1 § 48 ; voted against by Congress, ibid. ; Mr. Adams’ ex- 516 IXDEX. planation of it, ibid. ; revived l)y Mr. Polk, ibid.; opposed by Mr. Calhoun in its new .^bape, il,id. ; is no fnlly recognized part of our .system, ibid. Moral relations of states. ISee Diitie-i. Moser, J. J., § 191 ; an ambassador’s importations of goods, § 93. Comp. App. i., p. 421. Napieu, Sir W., his history of the Peninsular War, §§ 130, 135, 138. Napoleon I., § 124; his vast requisitions in war, § 133 ; his seizure of works of art in foreign countries, § 137 ; his paper blockades, § 20G. Naturalizaliou, what 1 § 70 ; inchoate, ibid. ; conflict of laws growing out of differ- ent rules of naturalization, ibid. ; modern rules of, ibid., pp. 100-103. Navigation, freedom of, § 59 ; viare clausum of Sclden, and m. liberum of Grotius, ibid. ; Portuguese and llussian exclusive claims, ibid. ; Danish straits now free, § 61 ; Black Sea free, etc., ibid. ; river n.avigation, § 62 ; act of Congress of Vienna on, ibid.; the Scheldt free, ibid. ; Danube; Mississippi ; St. Lawrence partially ; La Plata, etc., ibid. Neutrality and neutrals, §§ 16.3-181; doctrine of chiefly modern, § 163; impor- tance of, ibid. ; neutrals, who ? ibid.; gradations of neutrality, ibid. ; qualified neutrality differs from' alliance, ibid.; permanent, or ncutraliza'iun of sea or territory, ibid. ; armed, ibid, (see, also. Armed Neutrality) ; obligations of neu- trals, § 164; must be impartial, ibid.; but cannot be if they aid both parties, § 165 ; duty of neutrals to be humane to both parlies, § 166 ; especially to grant asylum to both, ibid. ; ought to disarm fugitive troo]:s, ibid. ; treatment of armed vessels fleeing into neutral harbors, ibid. ; case of the Schleswig vessel atLiibcck, ibid. ; may admit vessels of war for peaceful purposes, § 167 ; maj', but are not bound to, ojicu their ports fur prizes, ibid. ; obligations of United States, under treaties, to Fr.anee and England, § 168; Hautefeuille’s opinion discus.sed, ibid.; ina}' not lend money to a belligerent, nor allow hostile acts in their territories, § 169 ; nor allow their courts to decide on the validity of belligerent captures, ibid. ; nor purchase a prize or conquest made by a belligerent, ibid ; may not allow' private per.sons to build or augment or repair vessels for a belligeieut, ibid.; case of the Alabama, § 170; doubtful eases : allow'ing the passage of troops, § 171 ; or furnishing troops, § 172 ; what a neutral’s subjects may not do, § 173 ; rights of neutrals, as against belligerents, § 174 ; ease of the Caro- line, ibid ; the Chesapeake, ibid.; of the Florida, Fssex, Levant, General Arm- strong, ibid ; of French vessels in the Bay of Lagos, ibid.; cruisers may not chase a vessel within or across neutral waters, ibid. ; the neutral’s remedy in such cases, ibid ; respects due by belligerents to neutral’s flag, § 175; to their ambassadors, ibid.; nations bound to secure by law their neutrality, §176; neutrality' laws of the United States, ibid. ; British Foreign Enlistment Act of 1870, § 177; its principal provisions, ibid. ; case of British ambassador iu the United States, in the Crimean war, § 178; relations of neutrals to parties in a civil war, § 179 ; recognition of belligerency, § 180 (pp. 300-304); right of a foreign state to trade with revolters, § 181; right of blocking up ])orts as a w'ar-right, ibid. Neutral trade, or neutral ships and goods on the sea, their rights and liabilities, § 182-201. Importance of this title, § 182. Neutrals and neutral property, who and what iu war 1 § 183 ; liability to capture, its general principles, § 184; INDEX. 517 two rules of liability, from character of goods and of vessels, § 185 ; how the rules have shaped themselves, ibid. ; former treatment of vessels conveying hos- tile goods, § 186; treatment of neutral goods on enemy’s vessels as to freight, ibid. ; coast-fisheries of enemies allowed by some nations to go on, ibid. ; justice of rules respecting neutral trade considered, §187; former practice in regard to neutral trade, § 188 ; historical illustrations, § 189 ; declaration made at the Peace of Paris, in 1856, § 190; attitude of the United States touching them, ibid. ; true policy of the United States in this respect, ibid., note; opinions of publici'ts, § 191; neutral goods in armed enemy’s vessels, § 192, and note; con- traband, see that article. Trade closed in peace, but open in war, §§ 200, 201. New York Peace Society, petition of, to Congress, and answer, § 226. “ North American Review,” on the Monroe Doctrine, § 48 ; on the Sound tolls of Denmark, § 61. Norway, § 38, comp. § 108, App. ii., 1814 (p. 468, under 6). Nymwegen, or Nimeguen, Peace of, § 95 ; App. ii., 1678. Obligations of states to other states survive changes of governments, § 38. Occupation of territory by a conqueror, effect of, § 153 ; reconquest, effect of, ibid. Oleron, Jugements de, App. i., p. 414. Ompteda, his literature of international law, in German, App. i., p. 413. Orders in Council, British, in 1807, 1809, § 206 ; in 1861, closing ports to prizes, § 168. Ortolan, Theod., bis “ Diplomatic de la Mer ” cited, as in §§ 50, 84, 85, 167, 186, 191, 196, 202, 203, 204. Osenbriiggen, “De Jure Belli et Pacis Romanorum,” cited, §§ 8, 118. Palatine library carried away in 'Phirty Years’ War, § 137. Pardessus, “ Collection des Lois Maritimes,” §§ 99, 129 note, 189 note. Comp. App. i., p. 414. His “ Droit Commercial” cited, § 100. Paris, Treaty of, in 1856, § 62 and note; declaration attached to, §§ 128, 190, 202. Paschal II., Pope, ca.se of, § 104. Passports. See Safe Conducts. Paulus in the Digest, § 144, § 151. Peace of Crespy, App. ii., 1544; of Augsburg, 1555, ibid. ; of Westphalia, 1648, ibid.; Liibeck (see Peace of Westphalia, p. 432) ; Prague, ibid. (p. 432) ; Peace of the Pyrenees, App. ii., 1659 ; of Nymwegen, 1678, 1679, ibid. ; Ryswick, ibid., 1697 ; Carlowitz, ibid., 1699; Utrecht, ibid., 1713; Rastadt-Baden, ibid., 1714; Passarowitz, ibid., 1718; Nystadt, ibid., Brestlau-Berlin, ibid., 1742; preliminary and definitive treaty of peace of Aix-la-Chapelle, ibid., 1748; of Paris, ibid., 1763 ; Hubertsburg, ibid., 1763 ; Kutschuk-Kainardji, ibid., 1774; Teschen, ibid., 1779 ; Paris, ibid., 1781-1783 ; Versailles, ibid., 1783 ; Jassy, ibid., 1792; Basel (Spain and France), 1795 ; Basel (Prussia and France), ibid., 1796 ; Paris, (Sardinia and France), ibid., 1797 ; Leoben, Campo Formio, ibid., 1797 ; Amiens, ibid., 1802; Pre.sburg, ibid., 1805 ; Tilsit, ibid., 1807 ; of Sweden with Russia, ibid., 1809; of Schdnbrunn or Vienna, ibid., 1809 ; of Bucharest, ibid., 1812; Paris, first Peace of, ibid., 1814 ; Vienna, see Congress, Treaties; Paris, second 518 INDEX. Peace of, ibid., 181.5 ; Peace ofParis in 1856, ibid, (see Paris, Treaty of); of Villa- franca, Zurich, ibid , 1859 ; of Berlin, between Denmark and the German Con- federation, 1850, p. 488 ; of Vienna, of Denmark with Austria and Prussia, ibid., 1864 ; of Prague, between Prussia and Austria, ibid., 1866 ; of Versailles, pre- liminary, February 26, definitive. May 10, 1871, ibid.; of San Stefano, prelimi- nary between Russia and Turkey, February 19, March .3, 1878 ; definitive peace of the six Powers signatory to the Treaty of Paris, 1856, July 13, 1878. Peace, how different from truce, § 158 ; not always perpetual, ibid. ; separate and secret articles of, ibid. ; principals and accessories to, ibid. ; the language gener- ally used in treaties, ibid. ; restrictions on the power to make a peace, § 159 ; allies generally obligated not to separate their interests, ibid. ; effeets of treaties of peace, § 160; on private rights, ibid. ; on previous treaties, — do they survive war ? ibid. ; the answer depends on the subject matter of the previous treaties, ibid. ; opinions of different writers, ibid. ; effects of, on causes for which war was undertaken, ibid., § 161 ; particular points considered, ibid. ; when does peace begin? §162; effect of on captures made after or without knowledge of the peace, ibid. Peltier’s ca.se, charged with libeling a foreign sovereign, § 82, note. Phillimore cited, §§ 24, 37, 71, 78, 82, 118, 161, 173, 193, note, on selling articles used for war to belligerents within the neutral’s territory, animadverting on Judge Story, §§ 194, 196, 199, 201. Piedmont. See Sardinia. Pinheiro-Ferreira, on De Martens, § 118. Pirates and piracy, definition, § 144 ; one or several nations may enlarge the def- inition, but cannot ajtply it to international law, ibid. ; jurisdiction over pirates, ibid. ; the Barbary powers are not now sueh, ibid, (comp., also, § 36) ; pirates form no state, § 36 ; slave-trading not piracy by international law, § 146 ; are crews of rebels pirates ? § 145 ; efforts to make .slave-trade piracy internationally, § 217 ; a vessel suspected of piracy may be approached and its character ascer- tained, § 213. Plata, La, the, free navigation of, § 62. Pledges to confirm treaties, § 110. Poland, first partition of, App. ii., 1772 ; second and third, ibid., 1793, 1795. Political refugees, § 79. Polk, President, his proposition extending the Monroe Doctrine, § 48. Pope, the, relation of, to international law in mediteval Europe, § 8 ; dispensing power, ibid. ; grants of to Spain and Portugal, § 55 ; rank in European ceremo- nial, § 52 ; ambassadors of, § 98 ; cessions at Treaty of Tolentino, App. ii., 1797 ; Roman state made in 1870 a part of the kingdom of Italy, App. ii., 1859. Portalis, Count, on the usages of w^ar, § 136, note. Portugal, independent of Spain, App. ii., 1668 ; treaty of with Great Britain for the search of suspected slavers, § 216. Postliminy not applied to recapture from pirates, § 144 ; what by Roman law ? § 151 ; wherein modern postliminy differs from Roman, ibid. ; must be extended to neutrals, ibid. ; rule of, extended to reconquest, § 153. Preemption, a compromise between belligerents and neutrals, § 197 ; English prac- tice of, ibid. ; treaty of United States admitting the rule, ibid. INDEX. 519 Principalities, Danubian. See App. ii., under peace of Kutschuk-Kainardji, 1774 ; of Bucharest, 1812 ; Ackerman, convention of, 182G ; treaty of Adriano- ple, 1829 ; of Paris in 1856 (at large) ; of San Stefaiioand Berlin, 1878. Comp. §§ 37, 90. Prisoners of war, present treatment of, § 134, end ; escaping into neutral territory, § 151. See also Rome, War. Privateers, §§ 127-1 29 ; right to use them admitted by all, ibid.; advantages of, especially to a state with a small navy, ibid. ; great evils of, § 128 ; testimony as to these evils, especially of American publicists, ibid. ; abolislicd by declaration of Paris in 1856, ibid. ; why the United States declined to become a party to the declaration, ibid.; Mr. Seward’s offer to do this, ibid.; why declined, ibid. ; restrictions on privateering to prevent its evils, § 129. Private international law, what it is, § 73 ; its growth, ihid. ; its rules as to per- sonal capacity, § 74 ; as to foreign judgments, § 75 ; writers on, App. ii., p. 424. Prizes at sea, when the captors’ proparty, § 148; full title given to captor by a court, ibid. Property of states, whatl § 53; how acquired, § 54; how treated in war, § 137. Property in an enemy’s country, § 124. Provisions, when contraband, §§ 194 (5), 195, et seq. Proxenus in Greece, § 99. Prussia a kingdom, App. ii., 1713; acquisitions by treaties of Berlin and Dresden, 1742 and 1745 (under 1742) ; at Peace of Hiibertsburg, 1763 ; a party to the partitions of Poland, App. ii., 1772, 1793 ; and to the Peace of Tcschen, 1778 ; treaties, etc., with Napoleon I., at Basel, App. ii., 1795 ; at Tilsit, 1807 ; treaties with other allies against France, App. ii., pp. 468, 469; with allies after down- fall of Napoleon, App. ii., 1814, 1815; at treaties of 1840, 1841, 1856, App. ii., under those years ; treaties and affairs touching Schleswig-Holstein and Denmark, until convention of Gastein, in 1865, A])p. ii., under the year 1864 ; treaties with Austria, in 1866, App. ii , under the year; treaty with Franco, in 1871, App. ii., 1871 ; King of Prussia becomes Emperor of Germany, ibid , ibid. Naturalization in, § 70; treaty of North German Confederation with the United States touching, ibid.; treaty of 1785 with the United States, §§ 128, 198 ; claims of as it regards neutral trade, § 191. Puffendorf, Samuel, §§ 12, 31, 157 ; App. i., p. 414. Quintuple treaty (of London, 1841 ), provisions of, regarding search for slavers, § 216. Rachel, Samuel, App. i., p. 414. Rank of states. See Equality, Ambassadors. Ransom in war, of prisoners, § 134; of captured vessels, § 150; its conditions, ibid. ; hostages to secure a ransom, ibid. ; not favored by the laws of a number of states, ibid. ; Hautefeuille’s objections to ransom of neutral vessels, ibid. Rayneval, § 56 ; App. i., p. 421. Recapture. See Postliminy. Recognition of a new state, when lawful, §§ 40, 41. Reconquests and temporary conquests, § 153. Comp. § 142. Reddie, J., §§ 9, 187 note. 520 INDEX. Reiclistleputation, report of, App. ii., 1803. Religion, iiiterferenco on account of, § 51. Remonstrances of states against conduct of others, § 82. Comp. § 225. Reprisals, § 118; wlien resorted to? ibid.; how far just ? ibid.; known to the Greeks, but not to the Romans, ibid. ; and to mediteval Europe, ibid. ; general and special, ibid. ; modern, ibid., end. Reputation, right of, § 18 ; reputation of a .state, § 82. Requisitions or contributiun.'i in war, tliose of Napoleon I., § 135 ; in general, § 136; Vattel on, ibid. ; requisitions on Paris, § 137. Restitution, edict of, before the Thirty Years’ War, App. i., pp. 431, 432. Retaliation in war, its limits, § 132. Retorsion, § 118. Revolutions, interference to prevent, § 46 ; history of such interference, § 47. Rewards given to captors by English law, § 152. Comp. Salvage. Rheinbiind or Confederation of the Rhine. App. ii., p. 180. Rights and obligations of states, § 17 ; right of reputation, § 18 ; of redress, § 19 ; of puni.shing other states, is there any 1 § 20, a ; of conquest, § 21 ; of intercourse, is there any ? §§ 25, 63 ; of asylum, § 65 ; of innocent passage, ibid. ; of emigra- tion, ibid. ; rights over aliens, § 66 ; right of contract or treaty, § 101 et seg. ; of war, § 116 ; rights of neutrals, § 163 ct seq. Rln9on and Frego/.e, French amba.ssadors, their case, § 97. Rivers, freedom of navigation of, § 62 ; rule of Congress of Vienna concerning, ibid.; history of provisions touching a number of rivers, ibid. See Danube, Rhine, etc. Roberjot and Bonnier, French ministers, their murder, § 96 note. Rochau, V., his history of France cited, § 137. Rome, international law of, § 8 ; treatment of foreigners in, § 67 ; practiced no reiirisals, § 118 ; jus f etude of, § 120 ; cruel usages in wars, § 134 ; e.speeially towards non-combatants, § 135 ; usages in sack and sieges, § 138 ; its jus post- limiint, § 151 ; truce witli the Vejentes, § 157, note. Rules of 1856, § 202. Comp. § 100. Russia, gains of by Peace of Nystadt, App. ii., 1721 ; by jtartitions of Poland, 1772, 1793, ibid.; guarantees the Peace of Teschen, § 109; Peace of Kutschuk- Kainardji with Turkey, ibid., 1774 ; remarks on the interpretation of that peace, ibid., pp. 450, 451; Peace of Jassy, 1792, ibid.; of Tilsit, 1807; secret arti- cles, p. 463 ; peace with Sweden at Friedrichshamm, in 1809, ibid. ; with Tur- key at Bucharest, 1812, ibid. ; Russia’s part in the treaties of 1814, 1815, ibid. ; receives most of the Grand Duchy, of Warsaw, as Kingdom of Poland, p. 471 ; gains a kind of protectorate over the principalities on the Danube, as well as ter- ritory, by convention of Ackerman, 1826, and Peace of Adrianoi)le, 1829, ibid. ; its part in the Treaty of Paris of 1856, the new organization of Moldavia and Wallachia, and the alteration of the treaty in 1871, ibid. ; its separate Treaty of San Stefano, and part in the Treaty of Berlin, 1878, ibid. ; participation of Rus- sia in the armed neutralities, §§ 189, 209 ; in the Holy Alliance and the meas- ures afterwards, § 46 ; in the affairs of Greece, § 51, App. ii., and treaty at London, 1827 ; its law of naturalization, § 66 ; claim to the Pacific, above 51st degree north latitude, § 59 ; attempts to humanize the rules of war, § 142. INDEX. 521 Sa, case of, § 96. Safe conduct or safeguard, § 155. Salvage, § 152. Sanctions of international law, § 223. Sardinia, Kingdom of. (For Piedmont, Savoy, see Treaty of Cherasco, App. ii., 1 631 ; Treaty of the Pyrenees, ibid., 1659; of Vienna, 1689, under Treaty of Ryswick, p. 439, and of Utrecht.) Duke of Savoy made King of Sicily by the latter treaty, p. 444 ; becomes King of Sardinia by exchange of Sardinia with Sicily ill 1721 ; see under Quadruple Alliance, App. ii., 1718, p. 446 ; gains of Sardinia at Treaty of Vienna, 1735, 1738, App. ii. ; its cessions to France, App. ii., 1796; Piedmont annexed to France, App. ii., 1802 ; restorations by Congress of Vienna, p. 473 ; acquisitions by treaties of Villafranca and Zurich, App. ii., 1859; sub- sequent acquisitions in 1860, 1861, when the Kingdom of Italy took its name, and 1870, when the ecclesiastical state was annexed. (See under Treaty of Villafranca, App. ii., 1859. Savigny, F. von, his explanations oi jus naturale, § 10; his system of private international law, §§ 71, 72, 73. . Scheldt, free navigation of the, § 62. Schmalkalden, convention and league of, App. ii., 1530, 1531. Schomann on arbitration in Greece, § 225. Scott, Sir William (Lord Stowcll), on consuls holding prize courts, § 149; on occasional contraband, § 195 ; on preemption, § 197 ; on penalt}' for contra- band, § 198 ; on neutrals carrying despatches of belligerents, § 199 ; also cited, § 192 ; on continuous voyage.s, § 207. Sea, the high, free, § 59 ; near the coast, its relations to territory, § 56 ; jurisdic- tion over coast-sea, § 57 ; case of the Franconia, ibid. ; freedom of, invaded by Portugal, Great Britain, Russia, § 59 ; ceremonial of, § 84 ; disputes concern- ing this, § 85. Search, right of, chiefly a war right, applied to merchant vessels, § 208 ; how to be conducted, ibid.; duty of submitting to it, ibid.; treaties define it, ibid.; limited by convoi’, §§ 209-211 (sec Convoy). Special objects of, to execute revenue laws in peace, § 212; to examine vessels suspected of piracy, § 213; or of hostile designs, § 214 (case of the Virginias, ibid.) ; or vessels not for- eign suspected of being slavers, comp. § 146 ; foreign vessels engaged in the slave-trade not subjects of search, § 215; unless treaties give the right; at- tempts to make such treaties, §§ 216-218 ; discussions as to the meaning of •search or visit, §§ 219, 220 ; claim of Great Britain to search neutral ships for her seamen cannot be sustained, § 221. Seizure of foreign property on promise of compensation, § 197 ; on plea of neces- sity, ibid. ; seizure of ships carrying provisions, opinions on the right of, § 196 ; end. Selden, John, his “Mare Clausum,” § 59, p. 74. Senior, N. S., in “ Edinburgh Review,” cited, § 3. Seward, W. II. , his measures in the case of Arguelles, § 78 ; offer on the part of the United States to accede to the Declaration of Paris, § 128 ; refused to re- ceive a commissioner from IMaximilian in Mexico, § 89 ; on the affair of the Chesapeake, § 174 ; on recognition of belligerency, § 180 ; on blocking up har- bors in revolted territory, as a war measure, § 181. 522 INDEX. Ships, Iiow f:ir territory, § 58; foreign merchant ships, their relations to French law in Freiuh ports, § 68 ; neutrals, see Neutral Trade. Sieges, licenses of soldiers in, § 1.38 ; may be checked, ibid. Slavery, § 74, its local character ; shaken off by change of domicil, ibid ; will not revive by return to prior domicil ; compare cases decided by courts of Louisiana, ibid., note, p. 110; case of the Creole, ibid., cud. .Slave-trade, prohibitions of, § 146; made piracy by the United Slates in 1820, ibid.; by Great Britain in 1824, ibid.; made such by treaties of several states, ibid. ; but not by international law, ibid. Comp. Treaty of Washington in 1842, Search. Sovereigns, treatment of on foreign soil, §§ 68, 83 ; marks of respect to, §§ 83, 84; cannot be sued in foreign courts, § 68, note, p. 96 ; have no siiccial privileges when suing iu foreign courts, ibid. Sovereignty, what ? § 37 ; of a state differs from that of a prince, § 38, note ; in- volves independence and equality of ttate powers with those of other states, ibid. ; qu.alitied iu the case of confederate and protected states, ibid. Spain, Treaty of hladrid with France, App. ii., 1526, p. 430; of Cambray, 1529, ibid. ; with the Dutch tit Munster, 1648, acknowledging their iiuUpendcnce, ]). 437 ; Peace of the Pyrenees with France, same year ; Treaty of Lisbon, ac- knowledging the independence of Portugal, 1668, p. 438; its part at the tre.a- ties of Nymwegen, Ryswick, and Utrecht, pp. 439, 440, 443, 444 ; arrangements in consequence of the wars of the Quadruple Alliance, 1718, ]). 446 ; part in the Treaty of Vienna, 1735, 1738, p. 447 ; of Naples, 1759, p. 448 ; in the “family compact,” 1 761, p. 448 ; in the Peace of Paris, 1763, p. 449 ; iu the Peace of Ver- sailles, 1783, p. 452; peace with France, 1795, p. 454; Treaty of St. Ildef'onso, 1800, comp with Treaty of Madrid, 1801 (sec under Treaty of Luueville, 457) ; secret treaties of Fontainebleau with Najoleon, 1807, p. 464; refusal of Spain to sign the final act of the Congress of Vienna, 1815, p. 470, comp, the act, 13 ; interference in the. affiiirs of Spain, §§ 47, 48 ; treaty of, with Great Britain in 1817, conceding search for slavers, §§ 146, 216, Sponsio, what, and whether obligatory, § 102. State, what, § 36 ; pirates constitute no state, ibid.; the Barbaiy powers now states, ibid., and § 144. Srory, Judge, on domicil. § 71 ; his “ Conflict of Laws,” § 73 ; on jural capacity, as affected by domicil, § 74 ; his opinion on neutral’s selling armed vessels of war, § 193, note ; also § 194 ; on coasting trade opened to neutrals iu war, § 201. St. Pierre, the case of, § 203, p. 368. St. Pierre, Castel de, the Abbe', on public arbitration, § 226. Sully (then Marquis of Rosny), case of servant of, § 95. Surety, how different from guaranty ? § 109. Sweden, gains by Peace of Westphalia, App. ii., 1648, p. 433 ; guarantees the treaty, p. 436 ; Wheaton’s remark on this, ibid. ; losses by Peace of Nystadt, 1721, p. 446 ; cessions to Russia in 1809 by Peace of Friedrichshamm, p. 464; united with Norway by Peace of Kiel in 1814, p. 468. Switzerland, independence of acknowledged at Peace of Westphalia, p. 434 ; neu- tralized at Congress of Vienna, § 163 ; its practice of furnishing troop.s, espe- cially to France, § 172; jwobably lost the right to do this by being neutral- ized, ibid. INDEX. 523 Tacitus on secret warfare cited, § 133. Talleyrand on tlie rules of war, § 13ti, note. Territory, what, how acquired, §§ S.n, 56 ; are rc.'scls territory, § 58 ; mouths of rivers, hays, neighboring seas, §§ 56, 60. Thirty Years’ War, usages of war in, § 134 ; treatment of non-combatants in, § 135 ; mode of supporting armies in, ibid. ; fate of Magdeburg and Wurtzburg in, § 13S. Title to capture at sea, how and when acquired, §§ 148, 149. Torpeiloes used in modern warfare, § 133. Trade closed in peace but open in war, §§ 200, 201 ; Judge Story holds coasting- trade proper to be justly visited with confiscation, § 201 ; llauUfeuille on the rule of 1756, ibid. ; other opinions, ibid. Treaty or contract, riglit of, § 101 ; witli whom made, ibid. ; by whom, § 102 ; in a close confederation, only by the central power, ibid. ; made by a lituited sovereign, how far binding, § 103; e.xtreme case of, in a confederation, ibid.; obtained by fraud or by force, tiot binding, § 104 ; cannot bind to do wrong, § 105 ; kinds of, § 103 ; treaties of alliance, § 107; defensive alliance, what, ibid. ; of eonfedera- tioti, § 103; of gitaranty, § 109. (See Guaranty.) Confirinatioti of treaties by soletnn forms, hostages, ])ledges, § 110. (See, also. Hostages ) Treaties binding when agreed upon, if nothitig is said to the contrary, § 111 ; can ratification bo withheld, after full power is given to an agent, ibid. ; violation of, §112; iuter- pretiition of, § 113 ; language generally used in, § 158. Treaties referred to or mentioned in Appendix ii. (For treaties of peace, see Peace. Comp , also, Alli.ance, Convention, Congress.) Treaty of Madrid, § 104, App. ii., 1526; Cambr.ay, 1529; Crespy, 1544; Capitulation of Wittenburg, 1547 ; Fassau, 1552 ; Augsburg, 1555 ; Cherasco, 1631 ; Oliva and Copenhagen, 1660 ; triple alliance, 1668 ; Lisbon, same year ; partition treaties, 1698 and 1700 ; barrier treaties in 1709, 1712, 1715, pp. 444, 445 ; triple alliance, 1717; quad- ruple, 1718; Treaty of Vienna, 173.5, 1738 ; of Naples, 1759; the family com- pact, 1761 ; Treaty of Genoa, giving up Corsica to France, 1768 ; partitions of Poland, 1772, 1793, 1795; first armed ncutiality, 1780; declaration of Pilnitz 1791; Congress of Rastadt, 1797 second armed neutrality, 1800; Treaty of France, ceding Louisiana to the United States, 1803 ; treaties of Fontainebleau, 1807 ; various treaties and coalitions before the downfall of Napoleon, 1812, 1814, pp. 466-469 ; convention of Ackerman, 1826; Treaty of London, on the affairs of Greece, 1827 ; treaty separating Belgium and Holland, 1831 ; conven- tion of London, touching a king for Greece, 1832 ; convention of Unkiar-Skelessi, , promising aid from Russia to Turkey against Mchemet All and his son, 1833 ; Treaty of AVashington, 1842 ; treaty between Italian jirinces, 1844 ; Treaty of Guad.alupe-Ilidalgo ceding Mexican territorv to the United Statc.s, 1848 ; several treaties of China with Christian powers, 1858; treatv relating to a king for Greece, 1863 ; treaty uniting Ionian islands with Greece, 1864 ; treaties relating to tlie difficulties in Schleswig-Holstein, see under 1864; convention of Gastein, 1865; of Nikolsburg in 1866 ; of AVashington for settling claims and difficulties between the United States and Great Britain, 1871. Trent, the, case of, § 199. Truce, or armistice, § 156 ; general and special, ibid. ; by whom made, ibid. ; time of beginning of, § 157 ; what ctin be done in a truce, ibid. ; especially in the cas« of be.sieged places, ibid. 524 INDEX. Turkey is in the international system of Europe, § 5 ; its integrity guarantied by the signatories to the Peace of Paris, App. ii., 1855; its rights over the straits confirmed as part of the public law of Europe, § 61 ; treaties of London, 1840, 1841 ; Peace of Carlowitz rvith the emperor, App. ii., 1699 ; of Passarowitz with the same, 1718, ilhd. ; its various treaties with Russia. (See Russia, and the years 1774, 1792, 1812, 1826, 1829, 1833, 1856.) Peace of Paris with the six powers, App. ii., 1856 ; negotiations then and afterwards as to the, principalities, sec under that treaty; Treaty of Fan Stefano, 1878 ; of Berlin, ibid. (See under those years.) Twiss, Sir Travers, on the effect of war upon previous treaties, § 160; on arbitra- tion, § 227 ; cited, also, §§ 202, 208. Ulpian, on jus nalundc, as explained by Savigny, § 10 ; no postliminy, when ]iirates are the captors, § 146, note. Union of Utrecht, in 1579, Apj). ii , p. 432. United St.atcs of Americ.i, their independence acknowledged at Treaty of Ver- sailles, Ap)). ii., 1783 ; Treaty with Great Britain in 1794, § 78 (p. 118), § 124 (p. 203) ; Treaty of Ghent, 1814, §§ 59, 217 ; convention of 1818, on the fisheries, § 59 ; Reciprocity Treaty of 1854, ibid. ; Treaty of Washington in 1842, § 78 ; Treaty of Washington in 1862, § 219 (on the l ight of search) ; treaty with Prus- sia in 1785, §§ 128,198; Treaty of Washington in 1871 (see Washington) ; af- fairs with Denmark, §§ 61, 160, p. 302, § 211 ; naturalization in, § 70; right of negotiation, to whom pertaining, in, § 37 ; central government responsible for injuries committed by states, ibid.; limits on treaty-making power of, § 103; position as to hostile jiropcrty in the eotinlry, § 124; treaty with England in 1794 on this point, ibid. ; attitude as to privateering, § 128; as to neutrality, §§ 176, 178 ; as to declaration of Paris, §§ 128, 190 ; as to freedom and liabilities of neutral trade, § 191 ; as to preemption, § 197 ; as to law of blockade, § 206; as to belligerent convoy, § 211 ; as to search, § 217 et seq. ; law of, on tranship- ment of goods, § 212 ; naturalization arrangements, § 70; extradition arrange- ments, § 78. Valextixian I., the Emperor, law of, § 193. Valiti, § 56. Vattel, App. i., p. 420 ; often cited, as §§ 26, 63, 68, 71, 100, 102, 107, 109, 110, 113, 118, 122, 124, 136, 157, 159, 169, 171, 196. Verge, on De Martens, cited §§ 124, 128 note. Verona, see Congress. Virginiun, case of, § 214. Voyages, continuous, § 207. The doctrine originated by Sir W. Scott, in rela- tion to neutrals stopping at a neutral port, on a voyage between belligerent ports, ibid. ; extended to ve.ssels carrying contraband, by courts of the United States in war of secession, ibid. War, § 114 cf seq.; a just war, § 115 ; who is to judge? ibid. ; nations not bound by international law to submit to arbitration, ibid. ; ally may judge of lawful- ness of, ibid. ; principal reasons for a just war, § 116 ; kinds of, § 117 ; meas- ures, falling short of, § 118 (see Embargo, Retorsion, Reprisals) ; Pacific block- INDEX. 525 ade, § 119 ; declaration of, § 120 ; declaration in later times not always observed, § 121 ; wliat notices of war must be given, § 122 ; effects of a state of, § 123; is a hostile relation of states, not of individuals, ibid. ; but implies ce.ssatiou of intercourse boiween the subjects of the belligerents, ibid. ; license to trade with enemy’s subjects, ibid. ; property of individuals confiscable, but not now often confiscated, § 124; nho has a right to wage war, § 125; treatment of hostile property on the laud and on the sea, § 126; sea warfare, §§ 127-129 (see Pri- vateers) ; rules of war, especially on the land, §§ 130-142 ; vagueness of, § 130; but growing in mildness, ibid.; causes of this, ibid. ; fundamental rules of, § 131 ; retaliation, § 132 ; unlawful ways of injuring enemies in war, § 133; treatment of captured persons, § 1.34; of irregular troops, ibid. ; of non-com- batants and their property, § 135; summing up, § 136; cspeci.ally as to contri- butions and requisitions, ibid. ; treatment of public property, § 137 ; usage in sieges and storms of forts, § 13S; laws of war on tlie sea, and in descents upon the coast, §139; commercia belli, § 140; .spies, § 141 ; modern endeavors to mitigaie the evil of warfare, § 142 ; Dr. Lieber’s rules jirepared for tlie gov- ernment of the United States, ibid. ; rules of the convention at Geneva in 1S64, ibid.; of that at St. Petersburg in 1868, ibid.; the convention at Brussels in 1874 ; rules agreed upon, ibid., pp. 236-239 ; but opposed by some states, and not carried into effect, ibid. ; opinion of the “Institut du Droit” upon them, ibid., p. 239. Civil war, § 143; wars witli half civilized or uncivilized nations, ibid.; with pirates, § 141; who arc ]iratcs1 ibid.; crews of rebel vessels in regular war are not pirates, § 145 ; the slave-trade is not piracy, except by the laws of patticular states, § 146; allies in war ought not to make peace sepa- rately, § 159 ; war ends certain treaties, but not others, § 160. IVard, Robert, “ History of the Law of Nations,” §§ 8, 34 ; often cited, especially §§ 52, 88, 95, 96, 104, 118, 120, 133; inquiry into the manner in which wars have commenced, etc., § 121. Warden, D. B., on consuls, § ICO. Warnkbnig, Prof. L. A., on jus alhinngii, § 67 ; Ajjp. i., p. 414. Wasliington, Treaty of, in 1842, on extradition, § 78; on the right of search, § 218. Treaty of, in 1871, summary of, App. ii., 1871 ; on the Alabama case, articles 1-17 ; on the fisheries, etc., articles 18-33 ; on part of the boundary line on the Pacific, articles 34-42 ; rules for the arbitration at Geneva, p. 499 ; de- cision of the court of arbitration at Geneva, ibid. ; decision of Emperor of Ger- many on the boundary lino, in 1872, ]). 471; decision on the point submitted concerning the fisheries, etc., in 1877, ibid. Webster, Daniel, on .ships driven into foreign harbors, § 63, end ; on the case of the Creole, § 74, end; on a complaint of Austria against the United States, § 82; on the meaning of the right of search, § 219; on the impressment of British subjects from neutral vessels in war, § 221. Sec, also, § 174. Wheaton, Henry, App. i., p. 422; his “History of International Law,’ §§ 49, 47, 60. 200, 221, 225, 229 ; App. i., pp. 417, 419 ; his “Elements,” very often cited, as in §§ 26, 37, 42, 51, 59, 60, 62, 69, 91, 93, 98, 100, 107, 109, 111, 159, 160, 183, 191, 195, 199, 201, 203, 208, 211, 219, 226. Whewell, W., § 17, note. Wicquefort, Ahr. de, case of, § 91. Wildman, Richard, cited, §§ 12, 16 (note), 148 ; on burning prizes taken at sea. 626 INDEX. § 148 ; on the ransom-contract, taken in the recaptured vessel, § 150 ; cited, § 152 ; on licenses to trade, § 155; on cruisers’ violations of neutral territory, § 174; on treatment of vessels engaged in the enemy’s coasting trade, when captured, § 186. Wolf, Christian von, App. i., p. 419, and Wheaton’s remarks on his“Institu- tiones juris Naturaj ct Gentium,” and ‘‘Jus Gentium ” (Hist., pp. 176-183). Writers of works relating to international law, a selection of, App. i., pp. 413- 429 ; on its literature and history, p. 413 ; collections of early sea-laws, 414 ; of treaties, 415, 416, 427 ; diplomatic history, 416; (1) treatises on the science in general, before Grotins, 416, 417 ; from Grotius to J. J. Moser, (especially Gro- tius, 417, 418; Pnffendorf, 418, Rachel, Wolf, 419, Vattel (under Wolf), Byn- kershoek, 420) ; from Moser to 1860, 421-427 ; (especially Moser, G. F. de Martens, Kliiber, 420, Bentham, Kent, Wheaton, Manning, Hcffter, AVildman, 422, Phillimore, Twiss, 423 ; (2) Essays and ’Practs, (a) on ambassadors and consuls, 423 ; (!>) on private international law, 424 ; (c) on property of states, sovereignty over seas and rivers, 424, 425; {d) on maiitime law, rights of neu- trals, capture, etc., 425, 426. Collections of treaties, especially of particular na- tions, 429. Writers since 1860 arranged alphabetically, 427-429. ZoucH, Richard, § 9 ; App. i., p. 418. 'mJ POLITICAL SCIENCE AND ECONOMY. POLITICAL SCIENCE; Or, The State Theoretically and Practi* cally Considered. By THEODORE D. WOOLSEY, D.D., LL.D.i late President of Yale College. 2 vols., 8vo, $5.00. THE BOSTcrj TEANScn'T. — "ITowork'^r Political Science has ever been published In America which covers so wide p- ground and which treats the sub- ject so fairly and impartially, and with so ttoroinrh knowledge and judgment.” THE CINCINNATI GAZETTE. — “This work Ip indeed one ef the most im- portant contributions of the century to the science ci natural and national law and ethics.” THE N. Y. TRIBUNE.— “In the discussion of the tnaclfold questions suggested by the general theme of the work Or. Woolsey ei-hibits the same cautiousness of judgment, moderation of tone, and vigor cf expreseion which characterize his previous writings. His volumes abound with the sljns of profound study and copious erudition as well as of original thought.” aNTRODUCTION TO THE STUDY OF INTERWATIONAL LAW. 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